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CASES   ON   CONSTITUTIONAL   LAW. 


CASES 


ON 


CONSTITUTIONAL   LAW 


WITH  NOTES. 


PART   TWO. 


BY 
JAMES    BRADLEY    THAYER,  LL.D. 

WELD   PROFESSOK  OF   LAW  AT   HARVARD  UNIVERSITY. 


CAMBRIDGE: 

CHARLES    W.    SEVER. 

1894. 


Copyright,  1S94, 
By  James  Bradley  Thater. 


University  Press  : 
John  Wilson  and  Son,  Cambridge,  U.  S.  A. 


TABLE  OF   SUBJECTS. 


CHAPTER  IV. 

Pages 

Citizenship.  —  Fundamental  Civil  and  Political  Rights. 
—  The  Later  Amendments  to  the  Constitution  of 
the  United  States 449-692 


CHAPTER  V. 

Unclassified  Legislative  Power.  —  The  so-called  Police 

Power 693-944 


740032 


TABLE   OF    CASES. 


In  this  Table  eacli  case  which  has  the  names  of  two  parties  is  entered  twice ;  that  is  to 
say,  under  both  names,  —  except  wliere  these  are  identical.  Ejectment  cases  are  entered  a 
third  time,  under  the  name  of  the  fictitious  party.  As  regards  cases  in  the  notes,  mere  cita- 
tions are  generality  omitted. 


Page 

Ableman  v.  Booth  479  n. 

Alabama  v.  Nashv.  &c.  Ry.  Co.  797  n. 

Smith  V.  797 

Alger,  Com.  v.  693 

Allen,  Hewlett  v.  944  n. 

Amoskeag  Co.,  Head  v.  760 

Anderson,  Terry  v.  672 


Ball,  Kimmish  v.  757  n. 
Baltimore,  Mayor,  &c.  of,  Barron  i\     449 

V.  Radeeke  864 

Barbier  v.  Connolly  623 

Barron  v.  Mayor,  &c  of  Bait.  449 

Bartemeyer  v.  Iowa  532 

Beer  Co.  v.  Mass.  757 

Bertholf  r.  O'Reilly  725 

Birm.  Min.  R.  R.  Co.  v.  Parsons  850 

Bloomington,  Gridley  v.  828 

Booth,  Ableman  v.  479  n. 

Boston,  Roberts  )•.  576  n. 

Braceville  Coal  Co.  v.  People  923 

Brevoort  v.  Grace  882 

Bristol,  N.  Y.  R.  R.  Co.  v.  €87 

Brookhaven,  Chrisman  r.  576  n. 

Brummell,  Lehew  v.  574 

Budd  V.  N.  Y.  671,  804 
Butchers'  Un.,  &c.  Co.  v.  Cresc.  City, 

&c.  Co.  537 


Caldwell  v.  Te.xas  683 

California,  Hurtado  v.  616 

Cannon,  People  v.  841 

Carleton  I'.  Rugg  680  n. 

Carter,  Com.  v.  836 

Carthage  v.  Frederick  831 

Charlotte,  &c.  R.  R.  Co.  v.  Gibbes  684 

Cherokee  Trust  Funds  591  n. 

Chicago  V.  O'Brien  830  n. 

Chic,  &c.  Ry.  Co.  v.  Minnesota  660 


Chrisman  r.  Brookhaven 
Christensen,  Crowley  v. 
Civil  Rights  Cases 
Com.  V.  Alger 

V.  Carter 

V.  Gilbert 

V.  Ham.  Man.  Co. 

V.  Perry 
Connolly,  Barbier  v. 
Converse,  In  re 
Corfield  v.  Coryell 
Coryell,  Corfield  v. 
Cresc.  City,  &c.  Co.,  Butchers' 

&c.  Co.  V. 
Crowley  v.  Christensen 


D. 


Un. 


576  n. 
798 
554 
693 
836 
890 
917 
918 
623 
681 
453 
453 

537 

798 


Davidson  v.  N.  0. 

610 

Den  d.  Murray  v.  Hohoken, 

&c. 

Co. 

600 

Dering,  State  v. 

869 

Dewitt,  U.  S.  V. 

735 

Divine,  State  v. 

851 

Dupre',  In  re 

732 

E. 

Eilenbecker  v.  Plvm.  Co. 

673 

Elk  V.  Wilkins 

587 

Ewer,  People  v. 

837 

F. 


Ferguson  v.  Gies  573  n. 

Frederick,  Carthage  i'.  831 

Fuehring,  Reinken  v.  832 


G. 


Georgia,  Worcester  r.  583 

Gibbes,  Charlotte,  &c.  R.  R.  Co.  v.       684 
Gibbons  v.  Ogden  730 


VIU 


TABLE   OF   CASES. 


Gies,  Ferguson  v. 
Gilbert,  C'om.  v. 
Goddaril,  L'et'r 
Grace,  Brevoort  v. 
Gray,  Trageser  v. 
Gridley  v.  J31ooniington 


H. 


Page 
57o  II. 
8UU 
825 
882 
876  n. 
828 


Hamilton  Man.  Co.,  Com.  v.  918 

Happersett,  Minor  v.  45'J 

Hastings  v.  llaug  824  n. 

Haug,  Hastings  v.  824  n. 

Head  Money  Cases  768 

Heineuiann,  State  v.  876  n. 

Henderson  v.  Mayor  of  N.  Y.  738 

Hewlett  V.  Allen'  944 

Hoagland,  Wurts  v.  768 
Hoboken,  &c.  Co.,  Den  d.  Murray  v.    600 

Hodges,  Ex  parte  85'J 

Holden  v.  James  882  n. 

Holliday,  U.  S.  v.  731 

Hopkins,  Wo  Lee  v.  774 
YickWot'.                           532  n.,  774 

Hurtado  v.  California  616 

Husen,  K.  R.  Co.  v.  753 


Illinois,  Munn  v.  743 

Iowa,  Bartemeyer  v.  532 


J. 


Jacksonville,  Toledo,  &c.  Ey.  Co.  v.     856 
Jacobs,  In  the  Matter  of  627 

James,  Holden  v.  882  n. 

Jewett,  Wilkins  v.  892 

Justices,  Opinion  of  901,905 


K. 


Kagama,  U.  S.  v.  591 

Kansas,  Mngler  v.  782 

V.  Ziebold  782 

Kidd  r.  Pearson  796  n. 

Kimmisb  v.  Ball  757  n. 

King,  People  r.  568 


Lackey,  Oli.  &  M.  Ev.  Co.  v.  854 
Lake  Shore,  &c.  Ry.  Co.,  Morley  v.     683 

Law  ton  v.  Steele  817 

Leader  v.  Moxon  673  n. 

Lee  Sing,  Tn  re.  861 

Lehew  v.  Bnimmcll  574 

Lemmon  v.  Tlie  People  496 

Lent  r.  Tillson  654 

Lewis,  State  i".  824 n. 


License  Tax  Cases 
Look  Tin  Sing,  In  re 
Loomis,  Stale  v. 


M. 


737  n. 

578 
929 


Mackey,  Mo.  Pac.  Ry.  Co.  r.  646 

Mann,  State  v.  473 

Marx,  People  v.  632 

Maryland,  Singer  v.  874 

Mass.,  Beer  Co.  v.  Ibl 

Merchant,  Spencer  v.  647 

Miles,  West  Chester,  &c.  Co.  v.  578  n. 

Minnesota,  Chic,  &c.  Ry.  Co.  660 

Minor  v.  Happersett  459 

Missouri  Pac.  Ry.  Co.  i-.  Mackey  646 

Morley  v.  Lake  Shore,  &c.  Ry.  Co.  683 

Moxon,  Leader  v.  673  n. 

Mugler  V.  Kansas  782 

Munn  V.  111.  743 
Murray,  Den.  d.  v.  Hoboken,  &c.  Co.   600 


N. 


Nashville,  &c.  Ry.  v.  Ala.  797  n. 

Newell,  State  v.  591  n. 

New  Orleans,  Davidson  v.  610 

York,  Budd  r.  671,  804 

Mayor  of,  Henderson  v.  738 

V.  Walsh  804 

R.  R.  Co.  V.  Bristol  687 

Nye,  Turner  v.  893 


O. 


O'Brien,  Cliicago  v.  830 

Ogden,  Gibbons  r.  730 

Ohio  &  M.  Ry.  Co.  !•.  Lackey  854 

Opinion  of  Justices  901, 905 

O'Reilly,  Bertholfy.  725 


P. 


Parkman,  Rice  v.  880 

Parsons,  Birm.  Min.  Co.  v.  ^  850 

Patterson  v.  Ky.  737  n. 

Pearson,  Kidd  v.  796  n. 

Pease,  Starr  r.  889 

Pembina  Mining,  &c.  Co.  i'.  Pa.  408 

Pennoj'cr,  State  i\  876  n, 

Pennsylvania,  Pembina  Mining,  &c. 

Co.  V.  468 

Powell  V.  637 

People,  Braceville  Coal  Co.  v.  923 

V.  Cannon  841 

V.  Ewer  837 

V.  King  568 

Lemmon  v.  496 

V.  Marx  632 

V.  Phippin  876  n. 

Ramsey  v.  928  n. 

V.  Toynbee  715 


TABLE   OF   CASES. 


IX 


People,  Wynehamer  v. 
Perry,  Coin.  v. 
Phippin,  People  v. 
Plymouth  Co.,  Eilenbecker  v. 
Powell  V.  Pa. 


R. 


Page 
715 
917 
876  n. 
673 
637 


Radecke,  Mayor,  &c. 

of  Bait.  V. 

864 

Turner  v.  Nye 

893 

Railroad  Co.  v.  Husen 

753 

Ramsey  v.  People 

928  n. 

U. 

Rapier,  In  re 

732 

Reinken  v.  Fueliring 

832 

United  States  v.  Dewitt 

735 

Rhodes,  U.  S.  v. 

506 

V.  Holliday 

731 

Rice  V.  Parkman 

880 

V.  Kagama 

591 

Roberts  v.  Boston 

576  n. 

V.  Riiodes 

506 

Roby  V.  Smith 

457 

Rugg,  Carleton  v. 

680  n. 

V. 

Rutland  &  Burl.  R  R.  Co.,  Thorpe  v.  706 


S. 

Sandford,  Dred  Scott  v. 
Scott,  Dred,  t-.  Sandford 
Sharp  V.  Wakefield 
Sing,  In  re  Look  Tin 
Singer  v.  Maryland 
Slaughter- House  Cases 
Smith  r.  Ala. 

Rohy  V. 
Spencer  v.  Merchant 
Starr  v.  Pease 
State  V.  Bering 

V.  Divine 

V.  Heinemann 

V.  Lewis 

V.  Loomis 

V.  Mann 

V.  Newell 

V.  Pen  n  oyer 

V.  Toledo 

V.  Yopp 
Strauder  v.  West  Va. 


673  n. 


480 
480 

804  n 
578 
874 
516 
797 
457 
647 
889 
869 
851 

876  n. 

824  n. 
929 
473 

591  n. 

876  n. 
912 

867  n. 
543 


T. 

Page 
Terry  v.  Anderson  672 

Texas,  Caldwell  v.  683 

Thorpe  v.  R.  &  B.  R.  R.  Co.  706 

Tillson,  Lent  v.  654 

Toledo,  &c.  Ry.  Co.  v.  Jacksonville      856 
Toledo,  State  >:  912 

Toynbee,  People  v.  715 

Trageser  v.  Gray  876  n. 


Virginia,  Ex  parte 


548 


W. 


Wakefield,  Sliarp  y.                673  n,,  804  n. 

West  Chester,  &c.  R  R.  Co.  v.  Miles  578  n. 

West  Va.,  Strauder  v.  543 

Wilkins,  Elk  v.  587 

V.  Jewett  892 

Wo  Lee  c  Hopkins  774 

Worcester  v.  Georgia  583 

Wnrts  V.  Hoagland  768 

Wynehamer  v.  The  People  715 


Y. 

Yarbrough,  Ex  parte 
Yick  Wo  r.  Hopkins 
Yopp,  State  v. 


Z. 


Ziebold,  Kansas  v. 


551 

5.32  n.  774,  868  n. 

867  n. 


782 


PART    II. 


CHAPTER    IV. 

CITIZENSHIP.  — FUNDAMENTAL  CIVIL  AND  POLITICAL  HIGHTS  — 
THE  LATER  AMENDMENTS  TO  THE  CONSTITUTION  OF'  THE 
UNITED    STATES. 


BARRON    V.  MAYOR,   etc.   OF    BALTIMORE.   -"tX^/UTrC  V«-^  ^ 
Supreme  Court  of  the  United  States.     1833.       -  IHMaA    ^iJ^(S^ 

[7  Pet.  243  ;  10  Curtis's  Decisions,  464.]  /^A/UUXaaX/I^' 

Error  to  the  Court  of  Appeals  of  the  western  shore  of  the  State  of  /p-WK 

Maryland.  (KXUJUuJ^ 

Case  by  the  plaintiff  in  error  against  the  city  of  Baltimore,  to  recover 
damages  for  injiirics  to  the  wharf- |:n-operty  of  the  plaintiff,  arising  from-X(\  OvvA^ 
the  acts  of  tlie  corporation.  /^  -^  gX 

Tlie  city,  in  the  asserted  exercise  of  its  corporate  authority  oyer  the       n 
harbor,  the  paving  of  streets,  and  regulating  grades  for  paving,  and  Tanaa^  fyv-i 
over  the  health  of  Baltimore,  diverted  from  their  accustomed  and  nat-   AjJi(^j^^jS^ 
ural  course,  certain  streams  of  water,  which  flow  from  the  range  of  hills         » 
bordering  the  city,  and  diverted  them,  so  that  they  made  deposits  of   pljKx^(k.  o^^ 
sand  and  gravel  near  the  plaintiff's  wharf,  and  thereby  rendered  the    cpk&akJL/VU 
water  shallow,  and  prevented  the  access  of  vessels.     The  decision  of  A 
Baltimore  County  Court  was  against  the  defendants,  and  a  verdict  for  -^^^^  WM'A 
$4,500  was  rendered  for  the  plaintiff.     The  Court  of  Api^oals  reversed         a  'I    . 
the  judgment  of  Baltimore  County  Court,  and  did  not  remand  tlie  cose  V-'Ava-'>-^^ 
to  that  court  for  a  further  trial.     From  this  judgment  the  defendant  in  "t^lu^xh^  hi 
the  Court  of  Appeals  prosecuted  a  writ  of  error  to  this  court.  *^/ 

Mayer,  for  the  plaintiffs.  -  dXJ\f^L  t> 

Taney  and  Scott,  contra,  were  stopped  b}-  the  court.  kj^mJOlkA^ 

Marshaj  l,  C.  J.,  delivered  the  opinion  of  the  court.  q 

The  judgment  brought  up  by  this  writ  of  error  having  been  rendered  "A^ffvU"  O^ 
by  the  court  of  a  State,  this  tribunal  can  exercise  no  jurisdiction  over  it,    /ioA/ArtAAXu 
unless  it  be  shown  to  come  within  the  provisions  of  the  25th  section  of    I , 
the  Judicial  Act.     1  Stats,  at  Large,  85.  tfet  ^tX^ 

The  plaintiff  in  error  contends  that  it  comes  within  that  clause  in  the      ^  '\h/V^ 
VOL.  I.  — 20  .  ^ 


'450  BARRON    V.    MAYOR,    ETC.    OF   BALTIMORE.  [CHAP.  IV. 

i-  oCoJX 

i/^a^-  fifth  ameiulment  to  tlie  Constitution,  which  inhibits  the  taking  of  pri- 

,  vatc  property  for  public  use,  without  just  compensation.     He  insists 

,    .  ./cytiT-U  that  this  amendment,  being  in  favor  of  the  liberty  of  the  citizen,  ought 

1     I  ^  to^c  so  construed  as  to  restrain  the  legislative  power  of  a  State,  as 

'^^^■^-^^'^  well  as  that  of  tlie  United  States.     If  this  proposition  be  untrue,  the 

/Vtv^tA  court  can  take  no  Jurisdiction  of  the  cause. 

/      y'  The  question  thus  presented  is,  we  think,  of  great  importance,  but  . 

/        /  ."^^  °^  '""^"^  ditliculty. 

/y //^t^/^^^^    The  Constitution  was  ordained  and  established  b}-  the  people  of  the 

I     •  ^       United  States  for  themselves,  for  their  own  government,  and  not  for  the 

iM.  /U/w"-^^  government  of  the  individual  States.    Each  State  established  a  Constitu- 

■tMjux/i.^-  t'ion  for  itself,  and,  in  that  Constitution,  provided  such  limitations  and 

/  restrictions  on  the  powers  of  its  particular  government  as  its  judgment 

iHA  -  LAyA/X    f]i(;tated.     The  people  of  the  United  States  framed  such  a  government 

JrifUyudxA-^^^'  ^^'^  United  States  as  they  supposed  best  adapted  to  their  situation, 

V  and  best  calculated  to  promote  their  interests.     The  powers  they  con- 
.  J  /•  .  .   /^       ferred  on  this  government  were  to  be  exercised  by  itself ;  and  the  limi- 

tations  on  power,  if  expressed  in  general  terms,  are  naturally,  and,  we 

)  ^^cL/CM        think,  necessaril}-  applicable  to  the  government  created  b}-  the  instru- 

.^-{ijMX'^    ment.     They  are  limitations  of  power  granted  in  the  instrument  itself; 

.    A  not  of  distinct  governments,  framed  by  difi'erent  persons  and  for  differ- 

Q^<5txc          gj-^^  purposes. 

'ZofU  •  If  these  propositions  be  correct,  the  fifth  amendment  must  be  under- 

^  stood  as  restraining  the  power  of  the  general  government,  not  as  appli- 

^  U^A'U.OuA^  cable  to  the  States.     In  their  several  constitutions  the3'  have  imposed 
<jL\XJr  ^"^^  restrictions  on  their  respective  governments  as  their  own  wisdom 

suggested  ;  such  as  they  deemed  most  proper  for  themselves.  It  is  a 
-4/3  /i/iA  "  subject  on  which  the}'  judge  exclusively,  and  with  which  others  interfere 
\,4Jii.ili  no  further  than  they  are  supposed  to  have  a  common  interest. 

h)  JK_^        Tiie  counsel  for  the  plaintiff  in  error  insists  that  the  Constitution  was 

i     intended  to  secure  the  people  of  the  several  States  against  the  undue 

y\jc^X\,  tjto-exercise  of  power  by  their  respective  State  governments;  as  well  as 

.     0     against  that  which  might  be  attempted  by  their  general  government. 

\)     In  support  of  this  argument  he  relies  on  the  inhibitions  contained  in  the 

i    ioA/iA-  -^^^'^  section  of  the  1st  article. 

Y  We  think  that  section  affords  a  strong  if  not  a  conclusive  argument 
rV</U(A^UJU^.m  support  of  the  opinion  already  indicated  by  the  court. 

The  preceding  section  contains  restrictions  which  are  obviously  in- 
tended for  the  exclusive  purpose  of  restraining  the  exercise  of  power  by 
tlie  dei)artvnents  of  the  general  government.  Some  of  them  use  lan- 
guage applicable  only  to  Congress  ;  otliers  are  expressed  in  general 
terms.  The  third  clause,  for  example,  declares  that  "no  bill  of  attain- 
dej;  or  ca?  post  facto  law  shall  be  passed."  No  language  can  be  more 
general ;  yet  the  demonstration  is  complete  that  it  applies  solely  to  the 
government  of  the  United  States.  In  addition  to  tlie  general  arguments 
furnished  by  the  instrument  itself,  some  of  which  have  been  already 
suggested,  tlie  succeeding  section,  the  avowed  purpose  of  which  is  to 


CHAP.  IV.]  BAERON    Z?.    MAYOR,   ETC.    OF   BALTIMORE. 


451 


restrain  State  legislation,  contains  in  terms  the  very  prohibition.  It 
declares  that  "  no  State  shall  pass  any  bill  of  attainder  or  ex  post  facto 
law."  Tliis  provision,  then,  of  the  'Jth  section,  however  comprehensive 
its  lanouaoe,  contains  no  restriction  on  State  legislation . 

The  'Jtli  section  having  enumerated,  in  the  natnre  of  a  biU  of  rights. 
t)ie  limitations  infendcd  to  bc~ imposed  on  tlic  powers  of  tlic  general 
government,  the  loth  pr()ci;eds  to  enumerate  those  which  were  to  o|ier- 
ate  on  the  State  leuiblatures.     I'hese  restrictions  are  bronuht  toaetiier 


in  the  same  section,  and  are  bj-  express  words  applied  to  the  States. 
"  Xo  State  shall  enter  into  any  treaty,"  i&c.  Perceiving  that  in  a  con- 
stitution framed  by  the  people  of  the  United  States  for  the  government 
of  all,  no  limitation  of  the  action  of  government  on  the  people  would 
ap[)ly  to  the  State  government,  unless  expressed  in  terms  ;  the  restric- 
tions contained  in  the  10th  section  are  in  direct  words  so  applied  to  the 
States. 

It  is  worthy  of  remark,  too,  that  these  inhibitions  generally  restrain 
State  legislation  on  subjects  intrusted  to  the  general  government,  or  in 
which  the  people  of  all  the  States  feel  an  interest. 

A  State  is  forbidden  to  enter  into  any  treaty,  alliance,  or  confeder- 
ation. If  these  compacts  are  with  foreign  nations,  they  interfere  with 
the  treaty-making  power,  which  is  conferred  entirely  on  the  general  gov- 
ernment ;  if  with  each  other,  for  political  purposes,  they  can  scarceh' 
fail  to  interfere  with  the  general  purpose  and  intent  of  the  Constitution.  ^  , 
To  grant  letters  of  marque  and  reprisal,  would  lead  directly  to  war  ;  the  '^^  OvwzU^ 
power  of  declaring  which  is  expressl}'  given  to  Congress.  To  coin 
money  is  also  the  exercise  of  a  power  conferred  on  Congress.  It  would 
be  tedious  to  recapitulate  the  several  limitations  on  the  powers  of  the 
States  which  are  contained  in  this  section.  The3-  will  be  found,  gen- 
erally, to  restrain  State  legislation  on  sul>jects  intrusted  to  the  govern- 
ment of  the  Union,  in  which  the  citizens  of  all  the  States  are  interested. 
In  these  alone  were  the  whole  people  concerned.  The  question  of  their 
application  to  States  is  not  left  to  construction.  It  is  averred  in  posi- 
tiye  words. 

If  the  original  Constitution,  in  the  9tb  and  10th  sections  of  the  1st 
article,  draws  this  plain  and  marked  line  of  discrimination  between  the 
limitations  it  imposes  on  the  powers  of  the  general  government,  and  on 
those  of  the  States;  if  in  overy  inhibition  intended  to  act  on  State  ^^  /v^u^^ 
power,  words  are  employed  which  directly  express  that  intent,  —  some  ^^^  fi  ^ 
strong  reason  must  be  assigned  for  departing  from  this  safe  and  judi-  J^    ^ 

cious  course  in  framing  the  amendments,  before  that  departure  can  be  A'^-^tM,  a*^ 
assumed. 

We  search  in  vain  for  that  reason. 

Had  the  people  of  the  several  States,  or  any  of  them,  required  changes 
in  their  constitutions;  had  they  required  additional  safeguards  to  lib- 
erty from  the  apprehended  encroachments  of  their  particular  govern- 
ments ;  th^  remedy  was  in  their  own  hands,  and  would  have  been 
applied  by  themselves.     A  convention  would  have  been  assembled  by  AJ^rv^^ 


452  BARRON   V.    MAYOR,    ETC.    OF   BALTIMORE.  [CIIAP.  IV. 

the  discontented  State,  and  the  required  improvements  would  liave  been 
made  by  itself.  Tlie  unwield}'  and  cumbrous  macliinery  of  procuring  a 
recommendation  from  two  thirds  of  Congress,  and  the  assent  of  three 
fourths  of  their  sister  States,  could  never  have  occurred  to  any  human 
])oing  as  a  mode  of  doing  that  which  might  be  effected  by  the  State  it- 
self. Had  the  franiers  of  these  amendments  intended  tliem  to  be  limita- 
tions on  the  powers  of  the  State  governments,  they  would  have  imitated 
the  framers  of  the  original  Constitution,  and  have  expressed  that  inten- 
tion. Had  Congress  engaged  in  the  extraordinary  occupation  of  im- 
[M'oving  the  constitutions  of  the  several  States  b\^ffording_thepeople 
iidditional  protection  JVomthe  exercise  of  power  by  theirown_gpvern- 
ments  iii_j]3tUters_wjii£h_cpnc:ei-iieTpthenTseI^  alone,  they  would  have 
declared  this  pj^rposejnj^lainandinte^  language. 

But  it  is  universally  understood,  it  is  a  i)art  of  the  historv  of  the  day. 
that  the  great  revolution  ^Yhich  established  the  Constitution  of  the 
United  States  was  not  effected  without  immense  opposition.  Serious 
fears  were  extensively  entertained  that  those  powers  wliicli  the  patriot 
statesmen,  who  then  watched  over  the  interests  of  our  countrv.  deemed 
essential  to  union,  and  to  the  attainment  of  those  invalua])le  objects  for 
which  union  was  souglit,  might  be  exercised  in  a  manner  danocrous  to 
liberty.  In  almost  every  convention  by  which  the  Constitution  w:as 
;tdoi)ted,  amendments  to  guard  against  the  abuse  of  power  were  recom- 
mended. These  amendments  demanded  security  against  the  ai)pre- 
hended  encroachments  of  the  general  government,  not  against  those  of 
the  local  governments. 

In  compliance  with  a  sentiment  thus  generall}'  expressed  to  quiet 
fears  thus  extensivel}'  entertained,  amendments  were  proposed  by  the 
required  majority  in'  Congress,  and  adopted  b^-  the  States.  These 
amendments  contain  no  expression  indicating  an  intention  to  appl}- 
tliem  to  the  State  governments.     This  court  cannot  so  apply  them. 

We  are  of  opinion  that  the  provision  in  the  fifth  amendment  to  the 
Constitution,  declaring  that  private  property  shall  not  be  taken  for 
public  use  without  just  comi)ensation,  is  intended  solely  as  a  limitation 
on  the  exercise  of  power  by  the  government  of  the  United  States,  and 
is  not  applicable  to  the  legislation  of  the  States.  We  are  therefore  of 
oi)inion,  that  there  is  no  repugnancy  between  the  several  Acts  of  tlie 
General  Assembly  of  Maryland,  given  in  evidence  by  the  defendants  at 
1 1  ie  trial  of  tliis  cause,  in  the  court  of  that  State,  and  the  Constitution 
of  the  United  States.  This  court,  therefore,  has  no  jurisdiction  of  the 
cause  ;  and  it  is  dismissed.  ^ 


CHAP.  IV.] 


CORFIELD   V.    CORYELL. 


45: 


(K. 


CORFIELD  V.  CORYELL  1  -^  JlC.^ux^<^V>.J^ 

Circuit  Court  of  the  United  States  for  PennsylvIania.      1825.    i^^^/^j^C  ^rt, 


[4  Was/i.  a  C.  371.] 


This  was  an  action  of  trespass  for  seizing",  takino-,  and  carrying  awn.}', 
and  convertini)-  to  the  defendant's  use,  a  certain  vessel,  tlie  |)ro|jertv  of 
the  plaintiff,  called  the  '^  Hiram."  Plea  not  guilt}',  with  leave  to  justify. 
The  case,  as  proved  at  the  trial,  was  as  follows :  .  ,  .  [Here  it  is 
stated  that  the  plaintiff  was  owner  of  the  ''  Hiram,"  a  vessel  licensed  as 
a  coaster,  which,  being  let  to  one  Keene,  proceeded  from  Philadeli)hia 
in  May,  1821,  to  certain  oyster  beds  in  the  waters  of  New  Jersey, 
and  was  there  seized  while  dredging  for  oysters  ;  and  was  condemned 
and  sold  by  judicial  proceedings  under  the  laws  of  New  Jersey.  The 
defendant  acted  as  "prize  master"  in  the  seizure.] 

Washington,  J.,  after  stating  to  the  jury  the  great  importance  of 
many  of  the  questions  involved  in  this  cause,  recommended  to  them  to 
find  for  the  plaintiff,  and  assess  the  damages  ;  subject  to  the  opinion  of 
the  court  upon  the  law  argument  of  the  facts  in  the  cause. 

Verdict  for  $560,  subject,  &c. 

This  case  was  argued,  on  the  points  of  law  agreed  b}'  the  counsel  to  _/^^jt.A    ^^-"^ 
arise  on  the   facts,  at  the  October  term,  1824,  and  was  taken  under 
advisement  until  April  term,  1825,  when  the  following  opinion   was 
delivered  : 

Washington,  J.,  delivered  the  opinion  of  the  court.  The  points  -  1  _.  /; 
reserved  present,  for  the  consideration  of  the  court,  many  interesting  ^^^■^^^^■^^  ^^ 
^nd  difficult  questions,  which  will  be  examined  in  the  shape  of  objec-  XjMjkri/  <^ 
tions  made  by  the  plaintiff's  counsel  to  the  seizure  of  the  "  Hiram,"  and  _^  » 
the  proceedings  of  the  magistrates  of  Cumberland  County,  upon  whose  ''^' A' 
sentence  the  defendant  rests  his  justification  of  the  alleged  trespass.  (D  jjj .  fjj\, 
These  objections  are,  —  *       vi 

First.     That  the  Act  of  the  Legislature  of  New  Jersey  of  the  9th  of  iJU^ifl^  ^ 
June,  1820,  under  which  this  vessel,  found  engaged  in  taking  oysters  in 
Morris  River  Cove  by  means  of  dredges,  was  seized,  condemned,  and 
sold,   is  repugnant  to  the  Constitution  of  the  United  States  in  the 


following  particulars  : 

1.  To  the  eighth  section  of  the  first  article,  which  grants  to  Congress 
the  power  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes. 


2.  To  the  second  section  of  the  fourth  article,  which  declares,  that 
the  citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immuni- 
ties of  citizens  in  the  several  States. 

3.  To  the  second  section  of  the  third  article,  which  declares,  that  the  -^tA^j^^^yjJL 
judicial  power  of  the  United  States  should  extend  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction,  J_f. -fH         «  .  ,         ,^ . 


n  ^    ,  454  COHFIELD   V.    COllYELL.  PCHAP.  IV. 

-  ti       tt         ^'^  ^^^®  ^^^  ^^^  should  be  considered  as  not  being  exposed  to  these 

constitutional  objections,  it  is  then  insisted, 
lA^tA^  Arf*    '^econdl}'.    That  the  locus  in  quo  was  not  within  the  territorial  limits 

of  New  Jersc}-.     But  if  it  was,  then 
>H/Cii--1«yJ-      Thirdh".    It  was   not  within  the  jurisdiction  of  the  magistrates  of 

.        sj        Cumberland  County. 
'{A  <XAX  Fourthlj".   We  have  to  consider  the  objection  made  by  the  defendant's 

«wyA^Y       counsel  to  the  form  of  this  action. 

The  first  section  of  the  Act  of  New  Jersey  declares,  that,  from  and 
CfvxVC  after  the  1st  of  May,  till  the  1st  of  >Sei)tember  in  every  year,  no  ))erson 

.'^  -*      shall  rake  on  any  o\ster  bed  in  this  State,  or  gather  any  oysters  on  any 
/l      'banks  or  beds  within  the  same,  under  a  penalty  of  810. 

Second  section.    No  person  residing  in,  or  out  of  tliis  State,  shall,  at 
/     >  -fJ      any  time,  dredge   for  oysters  in  any  of  the  rivers,  bays,  or  waters  of 
the  State,  under  the  penalty  of  S50. 
tjUimiAA''        The  third  section  prescribes  the  manner  of  proceeding,  in  cases  of 
UtijuLA-     "^'iol^tions  of  the  preceding  sections. 

^        ,  The  two  next  sections  have  nothing  to  do  with  the  present  case, 

ajJ-'^  /cv/^       'Y\\Q,  sixth  section  enacts,  that  it  shall  not  be  lawful  for  any  person, 

f■J^J/^^^,^^^^       who  is  not,  at  the  time,  an  actual  inhabitant  and  resident  of  this  State. 

.    t'^       to  gather  oysters  in  any  of  the  rivers,  bays,  or  waters  in  this  State,  on 

/U.4UA/*'      board  of  any  vessel,  not  wholly  owned  by  some  person,  inhabitant  of, 

<iJ^Jjili(J^JUi^i    or  actually  residing  in  this  State  ;   and  every  person  so  oft'ending.  shall 

^i^     forfeit  SIQ.  and  shall  also  forfeit  the  vessel  employed  in  the  commission 

of  such  offence,  with  all  the  oysters,  rakes,  &c.,  belonging  to  the  same. 

'M/HUlOt/-      The  seventh  section  provides,  that  it  shall  be  lawful  for  an}'  person 

n         ,  y     to  seize  and  secure  such  vessel,  and  to  give  information  to  two  justices 

y\  (fXWUdt^  Q^  \]xe  county  where  such  seizure  shall  be  made,  who  are  required  to 

/  '  fhi  meet  for  the  trial  of  the  said  case,  and  to  determine  the  same  ;  and  irf 

'  case  of  condemnation,  to  order  the  said  vessel,  &c.  to  be  sold. 

jj_;u»ju^4  The  first  question  then  is,  whether  this  Act,  or  either  section  of  it,  is 

^  repugnant  to  the  power  granted  to  Congress  to  regulate  commerce  ?  .  .  . 

a    Aa-'MvA.         2.    The  next  question  is,  whether  this  Act  infringes  that  section  of 

'-  the  Constitution  which  declares  that  "the  citizens  of  each  State  shall 

be  entitled  to   all  the  privileges  and  immunities    of  citizens  in   the 

several  States  "  ? 


I       The  inquiry  is,  what  are  the  privileges  and  immunities  of  citizens  in 
^^^^^"^^^     j  the  several  States?     We  feel  no  hesitation  in  confining  these  expres- 
iJl^tyfiilv     '  sions  to  those   privileges  and  immunities  which  are,   in   their  nature, 
fundamental ;   which  belong,  of  right,  to  the  citizens  of  all  free  govern- 
ments ;  and  which  have,  at  all  times,  been  enjoyed  by  the  citizens  of 
the  several  States  which  com|)osc  this  Union,   from  the  time  of  their 
becoming  free,  independent,  and  sovereign.     What  these  fundamental 
principles  are,  it  would  perhaps  be  more  tedious  than  difficult  to  enu- 
I   merate.     They  may,  however,  be  all  comprehended  under  the  following 
I   ofeneral  heads  :  protection  bv  the  government ;  the  enjoyment  of  life 
:.'    and  liberty,   with  the  right  to  acquire  and  possess  property  of  evQij' 


(^^\o^^->- .         crKOAr   C\AH^\     'VVAV-C  ^1^^-^  cx.l'Xt    -fl^A.^.^^^    cv    '^-<-tt<j^^_^  J\~tt\x'V 

CHAP.  IV.]  CORFIELD    V.    COEYELL.  455     '^^^^'^^  ^*^ 

kind,  n.m\  to  nuvsuc  and  obtain  liapiMiicss  aiul  safety;  su1)icct  never-   ^^      A^jC 
thi-lcss  to  such  re:jVraints  as  tlic  oovernment  may  I'ustly  ])resciibe  for  c/"^ 
the  i'eucral  uuud  ut'  tlie  \vliule.     The  ri^lit  of  a  citizen  of  one  State  to    <*-  /iXaXx- 1 
pass  thvoaah,  or  to  reside  m  any  other  State,  for  pui-|JOses  of  trade,     i^^^^    o^ 
agriculture,  professional  ))ursuits,  or  otherwise  ;  to  claim  the  benefit  of       -    j. 
the  writ  oniabeas  co7'i)us  ;  to  institute  and  maintain  actions  of  any  kind  (} 

in  the  courts  of  the  State  ;  to  take,  hold  and  dispose  of  pro|)ertv,  either  %  (h.  iLm/- 
real  or  personal ;  and  an  exemijtion  from  hi.oher  taxes  or  imi)Ositions  ^^^^^^^.^^x^ ^ 
than  are  paid  by  the  other  citizens  of  the  State  ;  may  be  mentioned  as 
some  of  the  particular  privilc.oes  and  immunities  of  citizens,  which  are  "^^ cka-^a.^'-^ ■ 
clearly  embraced  by  the  general  description  of  ])rivilcges  deemed  to  be  ^  -u-ajcAaa. 
fundamental ;  to  which  may  be  added,  the  elective  franchise,  as  reou-  /y  ^^^ 
lated  and  established  by  the  laws  or  constitution  of  the  State  in  which 
it  is  to  be  exercised.  These,  and  many  others  which  might  be  men- 
tioned, are,  strictly  speaking,  privileoes  and  immunities,  and  the  enjoy- 
ment of  them  by  the  citizens  of  each  State,  in  every  other  State,  was 
manifestly  calculated  (to  use  the  expressions  of  the  preamble  of  the 
corresponding  provision  in  the  old  Articles  of  Confederation)  "the 
better  to  secure  and  perpetuate  mutual  friendship  and  intercourse 
among  the  people  of  the  different  States  of  the  Union." 

But  we  cannot  accede  to  the  proposition  which  was  insisted  on  by/ 
the  counsel,  that,  under  this  provision  of  the  Constitution,  the  citizens', 
of  the  several  States  are  permitted  to  participate  in  all  the  rights  which ;  ^ccovrv  A^ 
belong  exclusively  to  the  citizens  of  any  other  particular  State,  merely  '        /    /,  ■ 
upon  the  ground  that  they  are  enjoyed  by  those  citizens  ;  much  less,  '  / 

that  in  regulating  the  use  of  the  common  property  of  the  citizens  of  iXxtAx-ri\  ' 
such  State,  the  legislature  is  bound  to  extend  to  the  citizens  of  all  the  ■  (tL^lAx.  «=i-< 
other  States  the  same  advantages  as  are  secured  to  tlieir  own  citizens.     - 

A  several  fishery,  either  as  the  right  to  it  respects  running  fish,  or  Z-^-*^  p*^ 
such  as  are  stationary,  such  as  oysters,  clams,  and  the  like,  is  as  much  %  t  -  vJ^ 
the  property  of  the  individual  to  whom  it  belongs,  as  dry  land,  or  land 
covered  by  water ;  and  is  equally  protected  by  the  laws  of  the  State 
against  the  aggressions  of  others,  whether  citizens  or  strangers.  Where 
those  private  rights  do  not  exist  to  the  exclusion  of  the  common  right, 
that  of  fishing  belongs  to  all  the  citizens  or  subjects  of  the  State.  It  [s 
the  property  of  all ;  to  be  enjoyed  by  them  in  subordination  to  the  laws 
which  regulate  its  use.  They  ma}-  be  considered  as  tenants  in  common 
of  this  property  ;  and  they  are  so  exclusively  entitled  to  the  use  of  it, 
that  it  cannot  be 'enjoyed  by  others  without  the  tacit  consent,  or  the 
exi^ress  permission  of  the  sovereign  who  has  the  power  to  regulate 
itg  use. 

This  power  in  the  Legislature  of  New  Jersey  to  exclude  the  citizens 
of  the  other  States  from  a  participation  in  the  right  of  taking  oysters 
within  the  waters  of  that  State,  was  denied  by  the  plaintiff's  counsel, 
upon  principles  of  public  law,  independent  of  the  provision  of  the  Con- 
stitution which  we  are  considering,  upon  the  ground  that  the}'  are 
incapable  of  being  appropriated   until  they  are   caught.      This  argu- 


^/* 


CCO-tvvg 


456  CORFIELD   V.   CORYELL.  [CHAP.  IV. 

ment  is  unsupported,  we  think,  by  authorit}'.  Rutberfotb,  b.  1,  cli.  5, 
sect.  4  and  5,  who  quotes  Grotius  as  his  authority,  lays  it  down,  that, 
although  wild  beasts,  birds,  and  fishes,  which  have  not  been  caught, 
have  never  in  fact  been  appropriated,  so  as  to  separate  them  from 
the  common  stock  to  which  all  men  are  equally  entitled,  yet  where 
the  exclusive  right  in  the  water  and  soil  which  a  person  has  occasion 
to  use  in  taking  them  is  vested  in  others,  no  other  person  can  claim 
the  liberty  of  hunting,  lisliing,  or  fowling,  on  lands,  or  w^aters,  which 
are  so  appropriated.  "The  sovereign,"  says  Grotius,  b.  2,  ch.  2, 
sect.  5,  "  who  has  dominion  over  the  land,  or  waters,  in  which  the  fish 
are,  may  prohibit  foreigners  [by  which  expression  we  understand  him 
to  mean  others  than  subjects  or  citizens  of  the  State]  from  taking 
them." 

That  this  exclusive  right  of  taking  oysters  in  the  waters  of  New 
.lersey  has  ne ver  been  ceded  by  that  State,  in  express  terms,  to  the 
United  States,  is  admitted  by  the  counsel  for  the  plaintiff;  and  having 
shown,  as  we  think  we  have,  that  this  right  is  a  right  of  ])ropertv. 
vested  either  in  certain  individuals,  or  in  the  State,  for  the  use  of  the 
citizens  thereof;  it  would,  in  our  opinion,  be  going  quite  too  far  to 
construe  the  grant  of  privileges  and  immunities  of  citizens,  as  amount- 
ing to  a  grant  of  a  co-tenancy  in  the  common  property  of  the  State,  to 
the  citizens  of  all  the  other  States.  Such  a  construction  would,  in 
many  instances,  be  productive  of  the  most  serious  public  inconveni- 
ence and  injur}",  particularly,  in  regard  to  those  kinds  of  fish,  which, 
by  being  exposed  to  too  general  use,  may  be  exhausted.  The  oyster 
beds  belonging  to  a  State  may  be  abundantly  sufficient  for  the  use  of 
the  citizens  of  that  State,  but  might  be  totally  exhausted  and  destroyed 
if  the  legislature  could  not  so  regulate  the  use  of  them  as  to  exclude 
the  citizens  of  the  other  States  from  taking  them,  except  under  such 
limitations  and  restrictions  as  the  laws  rnay  prescribe.  .  .  . 

Fourthly.  .  .  .  The  objections  to  this  form  of  action  are  fatal.  .  .  . 
The  "  Hiram  "  then,  having  been  lawfully  in  possession  of  Keene,  under 
a  contract  of  hiring  for  a  month,  which  had  not  expired  at  the  time  the 
alleged  trespass  was  committed,  the  action  cannot  be  supported. 

Letjudc/ment  be  entered  for  the  defendant. 

Charles  J.  Ingersoll  and  J.  H.  Ligersoll^  for  plaintiffs. 

M'Evaine  and  Condy,  for  defendants.^ 

1  And  so  McCready  v.  Va.,  94  U.  S.  391.  See  also  Conner  v.  ElUott,  18  How.  591; 
Pauly.  Fa.,  8  Wall.  168;  Ward  v.  Md.,  12  Wall.  418;  Slaughter  House  Cases,  16 
Wall.  36;  Lemmon  v.  People,  20  N.  Y.  502,  607.  — Ed. 


CHAP.  IV.J 


EOBY  V.   SMITH   ET  AL. 


457 


/VIA.  ayH^--"->^ 


EOBY  V.    SMITH   et  al. 
Supreme  Court  of  Indiaxa.     1891\      .y^^M^  V^  ,uu^ 

[131  I"d.  342.]  \^      Xc^^uo^^    -^  c.^>^ 

From  the  Steuben  Circuit  Court.  I).  B.  Best,  E.  A.  Brattofi,  and 
W.  F.  Elliott  for  appellant.  J.  A.  Woodhull  and  W.  A.  Brown  for 
appellees. 

Miller,  J.  This  aetion  was  brought  by  the  apDellant,  Fi'ank  S. 
Robv,  trustee,  to  foreclose  a  mortogoc  on  real  estate  situate  in  Sleubea 
County,  in  this  State.  .  .  .  Demurrers  filed  by  each  of  the  defendants 
were  sustained  to  the  complaint,  and  final  judgment  rendered  on  de- 
murrer for  the  defendants. 

The  ruling  upon  the  demurrer  is  the  only  question  in  the  record.  The 
correctness  of  this  rulinp-  depends  upon  the  validity  and  construction  to 
be  o-iyen  to  section  2988,  R.  S.  1881,  in  force  since  May  31,  1879,  which 


is  as  follows :   "  It  shall  he  unlawful  for  any  person,  association. 


or  cor- 


Doration  to  nominate  or  appoint  any  person  a  trustee  in  any  deed, 
morto-gge.  or  other  instrument  in  writing  (except  wills),  for  any  purpose 
whateyer,  who  shall  not  be  at  the  time  a  bona  fide  resident  of  the  ^^tate 
of  Indiana  ;  and  it  shall  be  unlawful  for  any  person  who  is  not  a  bona 

jjerson, 


ij.de  Tpsirlpnt,  of  Hip  State  to  nr-t  as  such   trnstpe.     And  if  any 


after  his  appointment  as  such  trustee,  shall  remove  from  the  State,  then 
his  rights,  powers,  and  duties  as  such  trustee  shall  cease,  and  the  nronei- 
court  shall  appoint  his  successor,  pursuant  to  the  provisions  of  tlie  Act 
to  which  this  is  supplemental."  The  constitutionality  of  this  Act  is 
vigorously  assailed  by  counsel  for  the  appellant.  It  is  claimed  that  this 
Act  Hmits  the  constitutional  rights  of  citizens  of  this  State  to  select  and 


appoint  their  own  agents  in  the  control  and  management  of  their  own 
property,  which  is  one  of  the  inherent  and  inalienable  rjohts  of  a  citizen. 
The  facts  of  this  case  do  not  require  us  to  enter  into  a  discussion  of  tliis 


..^  ..^„  ^^.,^..11^  no  uw  cuun  iiiuu  It  uisuiission  oi  tnis     f 

question.     The  contract  was  entered  into  in  the  State  of  Michigan,  bv    (rj  fix  C(^ 


and  between  citizens  of  that  State,  to  seciu-e  an  indebtedness  expressly      .0  \ 

payable  in  that  State.      It  was  to  all  intents  and  purposes  a  Michigan 

contract,  except  that,  the  land  being  situate  within  this  State,  the  mort-      \lj^ 

gage,  which  is  a  qualified   conveyance  of  real  estate,  is  subject  to  tb^  ^^-^^"^^-^^ 

law  of  the  State,  &:oJai-_asJt  affects  the  validity  and  enforcement  of  the 

lien.     1  Jones,  Mortg.  §  662.     The  rights  of  the  citizens  of  this  State 

to  appoint  non-resident  trustees  are  not  involved  in  this  case. 

Another  question  involved  in  the  consideration  of  the  constitutionality 
of  the  Act  under  consideration  may  be  excluded  from  the  present  dis- 
cussion :  that  is,  the  right  of  a  non-resident  trustee  to  prosecute  in  the 
courts  of  this  State  actions  affecting  the  trust  property.  We  infer  from 
the  last  clause  of  the  section  that  it  was  the  purposeof  the  legislature 
in  enacting  this  statute  to  compel  trustees  to  reside  within  the  State  in 
order  to  bring  them  within  the  process  and  subject  to  the  control  of  the 


,A^vt^T.n.l^iiAMXuji     cr/    vtlfe^^RXl    ^^  ^XtvXAMi    <^^^ 


458  ROBY   V.    SMITH   ET   AL.  [CIIAP.  IV. 

State  courts.  In  the  present  action  tlic  suit  was  brought  by  a  resic^gnt 
trustee,  who  owed  liis  appoiiitnieut  to  the  order  oi'  the  court,  and  not  to 
the  act  of  tlie  parties. 
^  We  have  remaining  for  determination  the  question,  docs  or  does  not 
this  Act,  as  apulied  to  the  facts  diiselosed  in  the  record,  impair  tlie  |jriv- 
ik^ues  and  iinniuiiilies  of  citizens  of  another  State,  or  of  the  United 
States,  as  guaranteed  in  article  4,  §  2,  and  the  Fourteentli  Amendment 
of  tlie  Constitution  of  the  United  States?  The  constitutionality  of  this 
Act  has  never  been  passed  upon  by  this  court,  although  the  question 
seems  more  than  once  to  have  been  in  the  mind  of  the  court.  In  holding 
that  this  Act  did  not  apply  to  trustees  appointed  prior  to  the  passage 
of  the  Act,  the  court  in  Thom2:>son  v.  Edwards^  85  Ind.  414,  said: 
'•  Waiving  all  discussions  as  to  the  power  of  the  legislature  to  enact  such 
a  statute  as  applicable  to  trustees  to  be  thereafter  appointed,  it  is  mani- 
fest," etc.  In  Bryant  v.  Richardson^  126  Ind.  145-153,  it  is  said  that 
it  "  may  well  be  doubted"  if  that  portion  of  this  statute  which  applies 
to  natural  persons,  and  seeks  to  prohibit  them  from  naming  a  person 
who  is  a  non-resident  of  the  State  to  act  as  a  trustee  for  them,  is  valid. 
In  Farmers'  Loan  &  Trust  Co.  v.  Chicago  &  A.  Ry.  Co.,  27  Fed. 
Rep.  146,  Gresham,  J.,  said  of  this  statute:  "It  is  a  statute  which 
denies  to  residents  of  other  States  the  right  to  take  and  hold  in  trust, 
otherwise  than  by  last  will  and  testament,  real  and  personal  property  in 
Indiana.  The  right  is  asserted  to  deny  to  persons,  associations,  or  cor- 
porations, within  or  without  the  State,  power  to  convey  to  any  person 
in  trust,  not  a  resident  of  Indiana,  real  or  personal  propertj'  within  the 
State.  This  is  a  plain  discrimination  against  the  residents  of  other 
States.  If  Indiana  may  disqualify  a  resident  of  another  State  from 
actino;  as  trustee  in  a  trust  deed  or  mortgage  wdiich  conveys  real  or 
personal  property  as  security  for  a  debt  due  to  himself  alone,  or  for 
debts  due  himself  and  other  creditors,  it  w^ould  seem  that  the  State 
might  prohil)it  citizens  of  other  States  from  holding  property  within  the 
State,  and  to  that  extent  from  doing  Inisiness  witliin  the  State.  No 
State  can  do  the  latter.  A  person  may,  and  frequently  does,  acquire  a 
propert}'  interest  b^'  a  conveyance  to  him  in  trust.  A  citizen  of  the  United 
States  cannot  be  denied  the  right  to  take  and  hold  absolutely  real  and 
personal  property  in  any  State  of  the  Union,  nor  can  he  be  donicid  the 
right  to  accept  the  conveyance  of  such  property  in  trust  for  his  sole 
benefit,  or  for  the  benefit  of  himself  and  others...  This  riglit  is  incident 
to  national  citizcnshii>."  Section  2,  of  article  4,  of  the  Constitution  or 
the  United  States,  declares  that  "  the  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  in  the  several 
,  States."  "  Attemi)t  will  not  be  made,"  say  the  Supreme  Court  of  tlie 
1  United  States  in  Ward  v.  MaryUmd.,  12  Wall.  418,  "to  define  the 
words  'privilege  and  immunities,'  or  specif}^  the  rights  which  the^'  are 
intended  to  secure  and  protect,  bej'ond  what  may  be  necessary  to  the 
decision  of  the  case  before  the  court.  Beyond  doubt,  those  words  are 
words  of  verj'  comprehensive  meaning ;  but  it  will  be  sufficient  to  say 


CHAP.  IV.]  MINOR   V.    ITAPPEESETT.  459 

that  the  clause  plainly  and  unmistakably  secures  and  protects  the  rights 
of  a  citizen  of  one  State  to  pass  into  any  other  State  of  the  Union  for 
the  purpose  of  engaging  in  lawful  commerce,  trade,  or  business,  without 
molestation,  to  acquire  personal  property,  to  take  and  hold  real  estate." 
In  that  case,  one  of  the  trustees,  at  the  time  of  the  creation  of  the  trust, 
was  a  resident  of  the  State.  The  resident  trustee  having  died,  the 
action  was  prosecuted  by  the  surviving  and  non-resident  trustee.  The 
fiict  that  the  language  above  cited  was  not  strictly  essential  to  the  de- 
termination of  the  case  before  the  court  may  impair  the  force  of  the  de- 
cision as  an  authority,  but  it  does  not  detract  from  the  potency  of  its 
reasoning. 

Reluctant  as  we  are  to  hold  a  statute  regularly  enacted  by  the  General 
Assembl}-  unconstitutional,  we  cannot  avoid  the  conclusion  that  the  Act 
under  consideration  is  in  contiict  with  those  provisions  of  the  Constitu- 
tion of  the  United  States  which  ;a:uarantee  to  tiie  citizens  of  each  State, 
and  of  the  United  States,  all  the  privileges  and  in^munities  of  citizens 
of  the  several  States.  The  judgment  is  reversed,  with  costs,  and  cause 
remanded  for  further  proceedings  in  accordance  with  this  opinion. 

Elliott,  C.  J.,  did  not  sit,  and  took  no  part  in  the  decision  of  this 

//ad  da 

In   Elinor   v.    Happersett,    21    Wall.    162    (1874),    on  error  tothe'/^/V    — 
Supreme  Court  of  Missouri,  it  was  declared  bj'  the  Supreme  Court  of  ^  a 

the  United  States  (Waite,  C.  J.)  that  the  Fourteenth  Amendment  did  ^\j^  A 
n.ot  secure  to  women  the  right  of  suffrage.     ^^  The  question  is  pre-  ca^  '^    *' ^' ' 
scnted,"  said  the  court,  "  in  tins  case,  wlietTicr,  since  the  adoption  of  the  (^J!fy[f ytA  ti 
Fourteenth  Amendment,  a  woman,  who  is  a  citizen  of  the  United  States       _    P 4~i~s 
and  of  the  State  of  Missouri,  is  a  voter  in  that  State,  notwithstanding  ^^^•'^^r'^^ 
the  provision  of  the  Constitution  and  laws  of  the  State,  which  confine    iJltjL  ^^^ 
the  right  of  suffrage  to  men  alone.  { We  might,  perhaps,  decide  the    yi/jxixjiAA. 
^         case  upon  other  grounds,  but  this  question  is  fairly  madeA  From  the 
r/  opinion  we  find  that  it  was  the  only  one  decided  in  the  Court  below,  ^j  (m^  ^JsaAX 

and  it  is  the  only  one  which  has  been  argued   here.     The    case   was    i   ^      Q 
/ijA        undoubtedly  brought  to  this  court  for  the  sole  purpose  of  having  that    L^rv\  "Kaa-. 
J  -r^  r   question  decided  by  us,  and  in  view  of  the  evident  propriet}'  there  is  of  ri/v^  ^  (^(^ 
''K  having  it  settled,  so  far  as  it  can  be  by  such  a  decision,  we  have  con-      .  .    n 

d\\K        eluded  to  waive  all  other  considerations,  and  proceed  at  once  to  its    ^^A^^vu 
^^^^/determination.  .  .   .  ^mJlU 

^  "  To  determine,  then,  who  were  citizens^  of  the  United  States  before       Xj         v/ 1/ 

1  111  the  usage  of  English-speaking  people,  the  ^YOl•d  "  citizen,"  in  the  sense  of  mcni-    ^    iAM-  /jyK^ 
bership  of  the  Htate,  is  quite  modern.     "  The  term  '  citizen.'  "  said  Mr.  Justice  Daniel,  jjlinf  ^    Ola^u 
in  a  dissenting  opinion  in  Rnmlle  v.  Delnware  C(inal  Co.,  14  Howard,  80,  97   (1852),       T/J 
"  will  he  found  rarclv  occurring  in  the  writers  of  English  law."     TJie  word  is,  indeed,     jaJL^-,jj,^a^ 
familiar  enouf.';h  in  our  older  reports.  law-l)ooks,  and  general  literature  as  designating         ^ 
the  memlier  of  a  borough.     For  instance,  in  R.  v.  ILuhji'r,  1  KoUe,  138  (1614-15),  the.-'tCcA.    ^H 
rights  of  "  un  cittizen  cle  London,"  are  elaborately  considered  by  Coke,  C.  J.,  with  many      .  ■!_  ■     ^  f) 
references  to  the  Year  Books.     "  Sont.  5  sorts  de  Citi.-ens,"  he  says,  etc.     So  Ulack-    ■vaX<4^<c-*'^-^ 
stone  (I  Com.  174)  :  "  As  for  the  [parliamentary]  electors  of  citizens  and  burgesses,  ^        lJ) 


Xmj\-o^~ 


^-^A^o-Ot      460  ■      MINOR   V.    HAPPERSETT.  [CHAP.  IV. 

the  adoption  of  the  amendment  it  is  necessaiy  to  ascertain  wliat  per- 
^'^^^■^'^^^  sons  originally  associated  themselves  together  to  form  the  nation,  and 
Lj^clct*^,     what  were  afterwards  admitted  to   membership. 
'         .  *^        '"'•  Lookin*;  at  the  Constitution  itself,  we  find  that  it  was  ordained  and 
established  by  '  the  i)eople  of  the  United  States  '  (Preamble,  1  Stat,  at 
9u^J^/<^^.^^>      Large,  10);  and  then  going  further  back,  we  find  that  these  were  the 
'.  .  l)eople  of  the  several  States  that  had  before  dissolved  the  political  bands 

<\  which  connected  them  with  Great  Britain,  and  assumed  a  seijarate  and 

A  '  equal  station   among  the   powers  of  the   earth   (Declaration  of  Inde- 

■»--_i  pendence,  1  Stat,  at  Large,  1),  and  that  had  by  Articles  of  Confederation 

,  and  Perpetual  Union,  in  which  the}'  took  the  name  of  'the  United 

\jSx^\L^^  States  of  America,'  entered  into  a  firm  league  of  friendship  with  each 
other  for  their  common  defence,  the  security  of  their  liberties  and  their 
mutual  and  general  welfare,  binding  themselves  to  assist  each  other 
-VTntvc  u\~  against  all  force  offered  to  or  attack  made  upon  them,  or  any  of  them, 
on  account  of  religion,  sovereignt}',  trade,  or  any  other  pretence  what- 
ever. Articles  of  Confederation,  §  3  ;  1  Stat,  at  Large,  4, 
,4,  A^  "  Whoever,  then,  was  one  of  the  people  of  either  of  these  States  when 

these  are  supposed  to  be  the  mercantile  part  or  trading  interest  of  tlie  kingdom." 
And  in  Shakespeare  [As  Yoa  Like  It,  Act  II.,  sc.  1),  when  tiie  banished  Duke,  having 
proposed  to  "go  and  kill  us  venison,"  adds, — 

"And  yet  it  irks  me  the  poor  dappled  fools, 
Being  native  burghers  in  this  desert  city, 
Should  in  their  own  confines,"  etc.,  — 

we  hear  just  afterwards  of  Jaques  moralizing  in  the  forest  over  a  wounded  deer,  "  left 
and  abandoned  of  his  velvet  friends  "  :  — 

"  Ay,  quoth  Jaques, 
Sweep  on,  you  fat  and  greasy  citizens." 

The  proper  English  menninir  of  the  term  "citizen  "  imported  membersliip  of  a  bor- 
ough or  local  municipal  corporation.  The  usual  word  for  a  man's  political  relation 
to  the  monarch  or  the  Stpvte  was  "  sulncct."  In_France,  the  corresponding  phrase 
cifo)/e»,  cmiritot/cn,  seems  to  have  long  been  familiar,  in  the  modern  sense  of  the 
word  "citizen." 

The  -word  "  citizen  "  is  not  found  in  any  of  our  State  constitutions  before  that  of 
Massachusetts  ( 1 780) ;  and  it  was  not  in  the  rejected  Massarlmsf-tts  C'onstitntiun  of 
1778.  In  the  Declaration  of  Independence  (I77G),  we  read  it  once  :  "  He  has  con- 
strained our  fellow-citizens,"  etc..  and  once  in  the  Articles  of  Confederation  (1781). 
In  the  treaty  with  France  of  1778,  the  usual  phrase  is  "subjects."  "people."  or 
"  inlialiitants;  "  but  "  citizens  "  does  occur  as  applicable  to  the  United  States.  In 
the  treaty  with  Great  Britain  of  1782.  it  is  used  in  a  marked  way:  "There  shall  be  a 
.  .  .  peace  between  his  British  majesty  and  the  said  States,  and  between  tlie  subjects 
of  the  one  and  the  citizens  of  tlie  other." 

In  the  Mass.achnsetts  Constitution  (1 780),  the  word  occurs,  but  more  sparingly  than 
would  be  expected  in  a  similar  document  now.  In  the  Federal  Constitution,  prepared 
in  1787,  it  is  freely  used. 

It  seems,  then ,  to  have  been  the  events  which  happened  in  this  country  in  the 
eighth  and  ninth  derades  of  the  Ipst  century  wbiidi  first  brought  the  word  "  citizen."  in 
our  moilern  sense  of  it,  into  familiar  Englisli  syjeech.  See  Minor  v.  Ihippprsett,  21 
Wall.  162,  166.  For  interesting  indications  of  a  certain  per])lexity  felt  in  Europe,  in 
1784,  as  to  our  under.standing  of  the  term,  see  S  Works  of  John  Adam.s,  213. 

Compare  Blackstone,  infra,  p.  464,  note. — Ed, 


CHAP.  IV.]  MINOR   V.   II.VPPEESETT.  461 

the  Constitution  of  the  United  States  was  adopted,  became  ipso  facto  a 
citizen,  —  a  member  of  tlie  nation  created  by  its  adoption.  He  was  one 
of  the  persons  associating;  togetlier  to  form  tlie  nation,  and  was,  conse- 
Quently,  one  of  its  original  citizens.  As  to  tliis  there  has  never  been  a 
doubt.  Disputes  have  arisen  as  to  whether  or  not  certain  persons  or 
certain  classes  of  persons  were  part  of  the  people  at  the  time,  but  never 
as  to  their  citizenship  if  the}^  were.  i 

"  Additions  miglit  always  be  made  to  the  citizenship  of  the  United 
States  in  two  wa^-s,  — .first,  by  birth,  and  second,  by  naturalization. 
This  is  apparent  from  the  Constitution  itself,  for  it  provides  (Article  2, 
§  1)  that  '  no  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  the  Constitution,  shall  be 
eligible  to  the  oflice  of  President'  (Article  1,  §  8),  and  that  Congress 
shall  have  power  "to  establish  a  uniform  rule  of  naturalization.'  Thus 
new  citizens  may  be  born  or  they  may  be  created  by  naturalization. 

"  The  Constitution  does  not,  in  words,  say  who  shall  be  natural-born 
citizens.  Resort  must  be  had  elsewhere  to  ascertain  that.  At  com- 
mon law,  with  the  nomenclature  of  which  the  framers  of  the  Constitu- 
tion were  familiar,  it  was  never  doubted  that  all  children  born  in  a 
country  of  parents  who  were  its  citizens  became  themselves,  upon  their 
birth,  citizens  also.  These  were  natives,  or  natural-born  citizens,  as 
distinguished  from  aliens  or  foreigners.  Some  authorities  go  further 
and  include  as  citizens  children  born  within  the  jurisdiction  without 
reference  to  the  citizenship  of  their  parents.  As  to  this  class  there  have 
been  doubts,  but  never  as  to  the  first.  For  the  purposes  of  this  case  it 
is  not  necessar}'  to  solve  these  doubts.  It  is  sufficient  for  everything 
we  have  now  to  consider  that  all  children  born  of  citizen  parents  within 
the  jurisdiction  are  themselves  citizens.  The  words  'all  children '  are 
certainly  as  comprehensive,  when  used  in  this  connection,  as  '  all  pei'- 
sons,'  and  if  females  are  included  in  the  last  they  must  be  in  the  first. 
That  they  are  included  in  the  last  is  not  denied.  In  fact,  the  whole 
argument  of  the  plaintiffs  proceeds  upon  that  idea. 

"  Under  the  power  to  adopt  a  uniform  system  of  naturalization  Con- 
gress, as  early  as  1790,  provided  '  that  any  alien,  being  a  free  white 
person,'  might  be  admitted  as  a  citizen  of  the  United  States,  and  that 
the  children  of  such  persons  so  naturalized,  dwelling  within  the  United 
States,  being  under  twenty-one  years  of  age  at  the  time  of  such  natural- 
ization, should  also  be  considered  citizens  of  the  United  States,  and 
that  the  children  of  citizens  of  the  United  States  that  might  be  born 
beyond  the  sea,  or  out  of  the  limits  of  the  United  States,  should  l)e  co n- 
sidered  as  natural-born  citizens.  1  Stat,  at  Large,  103.  These  provisions 
thus  enacted  have,  in  substance,  been  retained  in  all  the  naturalization 
laws  adopted  since.  In  1855,  however,  the  last  provision  was  some- 
what extended,*and  all  persons  theretofore  born,  or  thereafter  to  be  born, 
out  of  the  limits  of  the  jurisdiction  of  the  United  States,  whose  fathers 
were,  or  should  be  at  the  time  of  their  birth,  citizens  of  the  United 
States,  were  declared  to  be  citizens  also.     10  Stat,  at  Large.  604. 


462  MINOR   V.    HAPPERSETT.  [CHAP.  IV. 

'•  As  early  as  ISO-t  it  was  enacted  by  Congress  that  wlien  any  alien 
Avlio  had  declared  his  intention  to  become  a  citizen  in  the  manner  pro- 
vided by  law  died  belbre  he  was  actually  naturalized,  his  widow  and 
children  should  be  considered  as  citizens  of  the  United  States,  and 
entitled  to  all  rights  and  privileges  as  such  upon  taking  the  necessar}' 
oath  (2  Stat,  at  Large,  293)  ;  and  in  1855  it  was  further  provided  that 
an\-  woman  who  might  lawfully  be  naturalized  under  the  existing  laws, 
married,  or  who  should  be  married,  to  a  citizen  of  the  United  States, 
should  be  deemed  and  taken  to  be  a  citizen.  10  Stat,  at  Large, 
604.  .  .  . 

''  If  the  right  of  suffrage  is  one  of  the  necessary  privileges  of  a  citi- 
zen of  the  United  States,  then  the  Constitution  and  laws  of  Missouri 
conlniing  it  to  men  are  in  violation  of  the  Constitution  of  the  United 
States,  as  amended,  and  consequently  void.  The  direct  f|uestion  is, 
therefore,  presented  whether  all  citizens  are  necessarily  voters.   .   .   . 

'•It  is  clear,  therefore,  we  think,  that  the  Constitution  has  not 
added  the  ri^ht  of  suffrage  to  the  privileges  and  inununities  of  citizen- 
ship as  they  existed  at  the  time  it  was  adopted.  This  makes  it  proper 
to  inquire  whether  suffrage  Avas  co-extensive  with  the  citizenship  of 
the  States  at  the  time  of  its  adoption..  If  it  was,  then  it  may  with  force 
be  argued  that  suffrage  was  one  of  the  rights  which  belonged  to  citizen- 
ship, and  in  the  enjoyment  of  which  every  citizen  must  be  protected. 
But  if  it  was  not,  the  contrary  may  with  propriety  be  assumed. 

"  When  the  Federal  Constitution  was  adopted,  all  the  States,  with  the 
exception  of  Rhode  Island  and  Connecticut,  had  constitutions  of  their 
own.  These  two  continued  to  act  under  their  charters  from  the  Crown. 
Upon  an  examination  of  those  constitutions,  we  find  that  in  no  State 
were  all  citizens  permitted  to  vote.  Each  State  determined  for  itself 
who  should  have  that  power.  Thus,  in  New  Hampshire,  '  every  male 
inhal)itant  of  each  town  and  parish  with  town  privileges,  and  places 
nnincorporated  in  the  State,  of  twenty-one  years  of  age  and  upwards, 
excepting  paupers  and  persons  excused  from  paying  taxes  at  their  own 
request,'  were  its  voters  ;  in  Massachusetts,  '  every  male  inhabitant  of 
twentv-one  years  of  age  and  upwards,  having  a  freehold  estate  within 
the  commonwealth  of  the  annual  income  of  three  pounds,  or  any  estate 
of  the  value  of  sixty  pounds  ;  '  in  Rhode  Island,  '  such  as  are  admitted 
free  of  the  company  and  society  '  of  the  colony  ;  in  Connecticut,  such 
persons  as  had  '  maturity  in  years,  quiet  and  peaceable  behavior,  a 
civil  conversation,  and  forty  shillings  freehold  or  forty  pounds  per- 
sonal estate,'  if  so  certified  by  the  selectmen  ;  in  New  York,  '  every 
male  inhabitant  of  full  age  who  shall  have  personally  resided  within 
one  of  the  counties  of  the  State  for  six  months  immediately  preceding 
the  day  of  election,  ...  if  during  the  time  aforesaid  he  shall  have 
been  a  freeholder,  possessing  a  freehold  of  the  value  of  twenty  pounds 
within  the  county,  or  have  rented  a  tenement  therein  of  the  yearly 
value  of  forty  shillings,  and  been  rated  and  actually  paid  taxes  to  the 
State ; '  in   New  Jersey,    '  all  inhabitants    ...   of  full  age  Avho  are 


CHAP.  IV.]  MINOR   V.   HAPPERSETT.  463 

worth  fift}-  pounds,  proclamation  mone\',  clear  estate  in  the  same,  and 
have  resided  in  the  county  in  which  they  claim  a  vote  for  twelve 
months  immediately  preceding  the  election  ; '  in  Pennsylvania,  '  every 
freeman  of  the  age  of  twenty-one  years,  having  resided  in  the  State 
two  3'ears  next  before  the  election,  and  within  that  time  paid  a  State 
or  county  tax  which  shall  have  been  assessed  at  least  six  months 
before  the  election  ; '  in  Delaware  and  Virginia,  '  as  exercised  by  law 
at  present ; '  in  Maryland,  '  all  freemen  above  tvvent3--one  ^ears  of  age 
having  a  freehold  of  fifty  acres  of  land  in  the  count}-  in  which  the}'  offer 
to  vote  and  residing  therein,  and  all  freemen  having  property  in  the 
State  above  the  value  of  thirty  pounds  current  money,  and  having  re- 
sided in  the  county  in  which  they  offer  to  vote  one  whole  year  next 
preceding  the  election  ; '  in  North  Carolina,  for  Senators,  '  all  freemen 
of  the  age  of  twenty-one  years  who  have  been  inhabitants  of  any  one 
county  within  the  State  twelve  months  immediately  preceding  the  da}' 
of  election,  and  possessed  of  a  freehold  within  the  same  county  of  fifty 
acres  of  land  for  six  months  next  before  and  at  the  day  of  election,' 
and  for  members  of  the  House  of  Commons,  '  all  freemen  of  the  age  of 
twenty-one  years  who  have  been  inhabitants  in  any  one  county  within 
the  State  twelve  months  immediately  preceding  the  day  of  any  election, 
and  shall  have  paid  public  taxes  ; '  in  South  Carolina,  'every  free  white 
man  of  the  age  of  twenty-one  yeai's,  being  a  citizen  of  the  State  and 
having  resided  therein  two  years  previous  to  the  day  of  election,  and 
who  hath  a  freehold  of  fifty  acres  of  land,  or  a  town  lot  of  which  he  hath 
been  legally  seised  and  possessed  at  least  six  months  before  such  elec- 
tion, or  (not  having  such  freehold  or  town  lot)  hath  been  a  resident 
within  the  election  district  in  which  he  offers  to  give  liis  vote  six  months 
before  said  election,  and  hath  paid  a  tax  the  preceding  year  of  three 
shillings  sterling  towards  the  support  of  the  government ;  '  and  m 
Georgia,  such  '  citizens  and  inhabitants  of  the  State  as  shall  have 
attained  to  the  age  of  twenty-one  years,  and  shall  have  paid  tax  for  the 
j-ear  next  preceding  the  election,  and  shall  have  resided  six  months 
within  the  county.' 

"  In  this  condition  of  the  law  in  respect  to  suffrage  in  the  several 
States  it  cannot  for  a  moment  be  doubted  that  if  it  had  l>een  intended 
to  make  all  citizens  of  the  United  States  voters,  the  framers  of  the  Con- 
stitution woultl  not  have  left  it  to  implication.  So  important  a  clianize 
i n  the  condition  of  citizenship  as  it  actually  existed,  if  intended,  woul d 
have  been  expressly  declared.   .  .  . 

"The  Constitution  was  submitted  to  the  States  for  adoption  in  1787, 
and  was  ratified  by  nine  States  in  17S8,  and  finally  by  the  thirteen 
original  States  in  1790.  Vermont  -was  the  first  new  State  admitted  to 
the  Union,  and  it  came  in  under  a  constitution  which  conferred  the  right 
of  suffi-age  only  upon  men  of  the  full  age  of  twenty-one  years,  having 
resided  in  the  State  for  the  space  of  one  wiiole  year  next  before  the 
election,  and  who  were  of  quiet  and  peaceable  behavior.  This  was  in 
1791.     The  next  year,  1792,  Kentucky  followed  with  a   constitution 


464  NATIVES,   ALIENS,    CITIZENS.  [ciIAP.  IV. 

confining  the  right  of  suffrage  to  free  male  citizens  of  the  age  of  twcMit}-- 
one  years,  wl)o  had  resided  in  the  State  two  years,  or  in  the  county  in 
^Yhich  the}-  offered  to  vote  one  year  next  before  the  election.  Tlien  fol- 
lowed Tennessee,  in  1796,  with  voters  of  freemen  of  the  age  of  tv.'enty- 
one  years  and  upwards,  possessing  a  freehold  in  the  county  wherein 
the}'  may  vote,  and  being  inhabitants  of  the  State,  or  freemen  being 
inhabitants  of  any  one  count}'  in  the  State  six  months  immediately  i)rc- 
ceding  the  day  of  election.  But  we  need  not  particularize  furtlier. 
No  new  State  has  ever  been  admitted  to  the  Union  which  has  conferred 
the  right  of  suffrage  upon  women,  and  this  has  never  been  considered  a 
valid  objection  to  her  admission.  On  the  contrary,  as  is  claimed  in  the 
argument,  the  right  of  suffrage  was  withdrawn  from  women  as  early  as 
1807  in  the  State  of  New  Jersey,  without  any  attempt  to  obtain  the 
interference  of  the  United  States  to  prevent  it.  Since  then  the  govern- 
ments of  the  insurgent  States  have  been  reorganized  under  a  require- 
ment that  before  their  representatives  could  be  admitted  to  seats  in 
Congress  they  must  have  adopted  new  constitutions,  republican  in 
form.  In  no  one  of  these  constitutions  was  suffrage  conferred  upon 
women,  and  yet  the  States  have  all  been  restored  to  their  original  posi- 
tion as  States  in  the  Union. 

"  Besides  this,  citizenship  has  not  in  all  cases  been  made  a  condition 
precedent  to  the  enjoyment  of  the  right  of  suffrage.  Thus,  in  Missouri, 
persons  of  foreign  birth,  who  have  declared  their  intention  to  become 
citizens  of  the  United  States,  may,  under  certain  circumstances,  vote. 
The  same  provision  is  to  be  found  in  the  constitutions  of  Alabama, 
Arkansas,  Florida,  Georgia,  Indiana,  Kansas,  Minnesota,  and  Texas.  .  .  . 

"Being  unanimously  of  the  opinion  that  the  Constitution  of  the 
United  States  docs  not  confer  the  right  of  suffrage  upon  any  one,  and 
that  the  constitutions  and  laws  of  the  several  States  which  commit  that 
important  trust  to  men  alone  are  not  necessarily  void,  we 

Affirm  thejxidgmenV 


NOTE. 

Natives,  Aliens,  Citizens. 

"  The  first  and  most  obvious  division  of  the  people  is  into  aliens  and  natural-Lorn 
snbiect?.  Natnral-born  subjects  are  such  as  are  born  within  the  dominions  of  tlie  crown 
of  England  ;  that  is,  within  the  ligeance,  or,  .is  it  is  generally  called,  the  allegiance  of 
thejdng ;  and  aliens,  such  as  are  born  out  of  it.  Alle^-'iance  is  the  tie,  or  liaamen. 
which  binds  the  subject  to  the  king,  in  return  for  that  protection  wliich  the  king 
affonls  the  subject.  The  thing  itself,  or  substantial  part  of  it.  is  founded  in  reason 
and  the  nature  of  government ;  the  name  and  the  form  are  ilorived  to  ns  from  our 
Gothic  ancestors.  Under  the  feudal  sj'stem,  every  owner  of  lands  held  them  in  subjec- 
tion  to  some  superior  or  lord,  from  whom  or  whose  ancestors  the  tenant  or  vassal  had 
received  them ;  and  there  was  a  mutual  trust  or  confidence  subsisting  between  the  lord 
and  vassal,  that  the  lord  should  protect  the  vassal  in  the  enjoyment  of  the  territory  he 
had  granted  him,  and,  on  the  other  hand,  that  the  vassal  shonld  be  faithful  to  the  lord, 
and  defend  him  against  all  his  enemies.  .  .  , 


CHAP.  lY.]  NATIVES,    ALIENS,   CITIZENS.  465 

"But,  besides  these  express  eng.agements,  the  law  also  holds  that  there  is  an  implied, 
original,  and  virtual  allegiauce,  owiug  from  every  subject  to  his  sovereign,  auteeedeutly 
to  any  express  promise  ;  and  although  tiie  subject  never  swore  any  faith  or  allegiance 
in  form.  For  as  the  king,  bv  the  very  descent  of  the  crown,  is  fully  invested  wil'i  all 
the  rights,  and  bound  to  all  the  duties,  of  sovcreigntv,  Ijefore  liis  coi'onation  ;  so  the 
subject  is  bound  to  his  priiico  by  an  intrinsic  allegiance,  before  the  supcriuductiou  of 
those  outward  bonds  of  oath,  homage,  and  fealty  ;  which  were  only  instituted  to  remind 
the  subject  of  tliis  his  ])i-evious  duty,  and  for  the  better  securing  its  performance.  .  .  . 

"  ^Vllcgiance,  botli  express  and  implied,  is  however  distinguished  l)y  the  hiw  into  two 
sorts  or  species,  the  one  natural,  the  other  local  ;  the  former  being  also  perpetual,  the 
latter  temporary.  Natural  allegiance  is  such  as  is  due  from  all  men  born  within  tlie 
king's  dominions  immediately  upon  their  birth.  For,  immediately  upon  their  birth. 
they  are  under  the  king's  i)rotection :  at  a  time,  too,  when  (during  their  infancy)  they 
are  incapable  of  protecting  themselves.  Natural  allegiauce  is  therefore  a  debt  of 
gratitude  ;  which  cannot  be  forfeited,  cancelled,  or  altered  by  any  cha;ige  of  time, 
place,  or  circumstance,  nor  by  anything  but  the  united  concurrence  of  the  legislature. 
An  Englishman  who  removes  to  France,  or  to  China,  owes  the  same  allegiauce  to  the 
King  of  England  there  as  at  home,  and  twenty  years  hence  as  well  as  now.  .   .  . 

"  Local  allegiance  is  sucli  as  is  due  from  an  alien  or  stranger  born,  for  so  long  time 
as  he  continues  within  tlie  king's  dominion  and  protection :  and  it  ceases  the  instant 
such  stranger  transfers  himself  from  this  kingdom  to  another.  ■ .  .   . 

"  When  I  say,  that  an  alien  is  one  who  is  boru  out  of  the  king's  dominions,  or  alle- 
giance, this  also  must  be  understood  with  some  restrictions.  The  common  law,  indeed, 
stood  absolutely  so,  with  only  a  very  few  exceptions ;  so  that  a  particular  Act  of  Par- 
liament became  necessary  after  the  Restoration,  '  for  the  naturalization  of  children  of 
his  Majesty's  English  subjects,  born  in  foreign  countries  during  the  late  troubles.' 
And  this  maxim  of  the  law  proceeded  upon  a  general  principle,  that  every  man  owes 
natural  allegiance  where  he  is  born,  and  cannot  owe  two  such  allegiances,  or  serve  two 
masters,  at  once.  Yet  the  children  of  the  king's  ambassadors  born  abroad  were  always 
held  to  be  natural  subjects :  for  as  the  father,  though  in  a  foreign  country,  owes  not 
even  a  local  allegiance  to  the  prince  to  whom  he  is  sent ;  so.  with  regard  to  the  sou 
also,  he  was  hell  (by  a  kind  of  posfliinininm)  to  be  boru  under  the  King  of  England's 
allegiaiirc.  I'ci'ri'^cntod  bv  his  father  the  ambassador.  .  .  . 

"  A  doni/i'ii  is  an  alien  born,  but  who  has  obtained  ex  donatione  regis  letters-patent 
to  make  him  an  English  subject :  a  higli  and  incommunicable  branch  of  the  royal  pre- 
rogative. A  denizen  is  in  a  kind  of  middle  state,  between  an  alien  and  natural-l)orn 
suliiect.  and  partakes  of  both  of  tliem.  .  .  . 

"  Naturalization  cannot  be  performed  but  by  Act  of  Parliament :  for  by  this  an  alien 
is  put  in  exactly  the  same  state  as  if  he  had  been  born  in  the  king's  ligeance ;  except 
only  that  he  is  incajjable,  as  well  as  a  denizen,  of  being  a  member  of  the  Privy  Council, 
or  Parliament,  holding  offices,  grants,  &c.  .  .  . 

"These  are  the  principal  distinctions  between  aliens,  denizens,  and  natives  :  distinc- 
tions, which  it  hath  been  frequently  endeavored  since  the  commencement  of  this  cen- 
tury to  lay  almost  totally  aside,  by  one  general  Naturalization  Act  for  all  foreign 
Protestants.  An  attempt  which  was  once  carried  into  execution  by  tiie  statute  7  Ann. 
c.  5;  but  this,  after  three  years'  experience  of  it,  was  repealed  by  the  statute  10  Ann. 
c.  5,  except  one  clause,  which  was  just  now  mentioned,  for  naturalizing  the  children  of 
English  parents  boru  abroad." — 1  Blackstoxe's  Com-  366. 

See  also  Sir  Thomas  Smith's  Com.  of  England,  book  i.  cc.  10,  22-24  (1.56.5). 

"I.  Natives  and  Aliexs.  .  .  .  We  have  to  consider  (1)  the  difference  liotween 
natives,  or  members  of  the  State  or  nation,  and  foreigners;  (2)  the  difference  1)etwceu 
citizens  and  other  members  of  the  nation.  We  need  not  consider  the  different  grades 
witliin  the  citizen  body  till  we  discnss  the  Constitution  in  detail.  .  .  . 

"  Nationality  may  be  determined  bv  — 

"  (a)  Place  of  birth  {Gcliini.-inr/).  This  is  in  the  main  tlie  later  medi.'eval  view,  and 
is  still  the  principle  of  English  law,  wliich  distinguishes  '  natural-born '  subjects  from 
VOL.  I.  —  -M  ■ 


466  NATIVES,   ALIENS,   CITIZENS.  [CHAP.  IV. 

'aliens.'  Birth  ou  an  English  ship  or  in  an  English  embassy  is  equivalent  to  birth  in 
England,  jjut  the  print-iph-  has  l)cen  so  far  inodified  that  the  chililren  uf  Enirlish- 
men,  born  abroad,  become  Eugiish  ciii/.eus  :  and  naturalization  has  beeunic  much 
easier.     The  law  of  the  United  States  goes  ou  the  same  priuciples. 

"(b)  Douiicil.  This  form  of  the  territorial  principle  is  more  in  keeping  with  modern 
ideas,  because  it  lavs  stress  not  ou  the  casual  place  of  birth,  but  on  tlic  permanent 
douiicil  of  the  parents,  and  suliscduently  of  tlio  man  hiiuseU'.  But  here  differences 
arise,  according  as  settlement  is  made  easy  or  dithcult.  This  was  the  ])rinciple  i)ar- 
tially  followed  by  Austria  in  earlier  times  aud  by  individual  German  States.  But 
there,  too,  it  was  modified  by  the  forms  of  a  personal  grant  of  native  rights. 

"  I'j)  Midway  between  these  comes  the  Swiss  urincinle  of  membership  in  the  com- 
mune, which  forms  the  basis  of  membership  of  the  Canton  {Cantunsburr/crrec/d),  and  of 
the  Swiss  confederation  (Schweizerbiiiy/errecht).  The  rights  in  the  commune  depend 
not  on  place  of  Ijirth  or  domicil,  but  on  descent  from  parents  who  are  citizens  of  the 
commune,  even  though  they  live  outside  it.  It  is  not  unlike  tlie  old  Roman  municipal 
law,  which  was  also  based  on  ori//o  from  a  particular  ninnicipium. 

"  (_(/)  Modern  States,  generallv,  recognize  nationality  as  a  personal  relation,  not 
mainly  dependent  on  place  of  birth  or  domicil.  but  on  descent  from  members  of  the 
nation  and  ijersoual  reception  into  its  membership.  Place  of  birth  aud  domicil  come 
iu  to  complete  the  notion. 

"This,  iu  the  main,  is  the  principle  for  France,  Prussia,  and  the  German  Empire. 
This  system  best  corresponds  to  modern  political  ideas,  which  regard  the  personal 
relation  to  the  nation  as  the  essential  germ  of  the  conception  of  the  State. 

"  But  the  different  systems  tend  to  approach  and  supplement  one  another.  Descent, 
birthplace,  domicil  aud  naturalization,  marriage  and  leoitimation,  thus  all  combine, 
directly  or  indirectly,  to  constitute  the  qualification  for  citizenship.  ... 

"  It  is  (|uite  possible  for  one  person  to  have  tiie  rights  of  a  native  (Heiinatsrechte)  in 
two  States  at  once,  and  modern  conditions  indeed  encourage  this.  In  the  i-are  case  of 
a  conflict  of  duties  it  may  be  hard  to  reconcile  them.  It  is  not  always  a  safe  principle 
that  the  earlier  right  should  take  precedence,  especially  where  it  is  dormant,  while  the 
later  right  is  actual.  In  such  cases  the  first  duty,  e.  g.,  of  military  service,  is  to  the 
country  in  which  a  man  is  living.  .  .  . 

"  In  private  law  the  distinction  between  citizen  and  alien  used  to  be  far  more  import- 
ant than  now.  The  spheres  of  private  and  public  law  are  now  much  more  sharply  dis- 
tinguished, and  hence  nationality,  wiiicli  is  essenti.illv  a  political  idea,  has  no  place  in 
private  law.  As  a  rule  natives  aud  aliens  are  alike  reg'arded  as  both  possessing  full 
riglits  in  private  law.  .  .  . 

"  But  in  the  sphere  of  public  law  the  distinction  between  citizen  and  alien  remains 
in  full  force.  The  following  rights,  exce])t  in  case  of  sjiecial  grant,  are  confined  to 
Datives  :  —        /  irut  i*^    -yuJUMui/ut^   lUnx/^AAcd  4A^'Vn\  ^yr.-^iytiX<^  ^ 

"{a)  The  right  of  permanent  residence  in  the  country.  A  native  cannot  be  handed 
over  to  a  foreign  State,  or  banished,  without  grave  political  reasons. 

"  (/>)  The  rjp-ht  to  the  protection  of  his  State,  even  if  lie  is  staving  .abroad. 

"  (c)  The  exercise  of  the  franchise  and  of  the  rights  of  a  full  citizen.-? 

"  (d)  The  right  to  hold  a  ]iublic  office.  -* 

"  (e )  Sometimes  such  general  political  rights  as  those  of  association,  petition,  or  free 
publication.  This  does  not  mean  that  foreigners  are  absolutely  excluded  from  these 
rights,  but  that  they  only  enjoy  them  on  sufferance. 

"...  II.  Citizens.  The  bndv  of  full  citizens  rise  above  the  general  mass  oF  the 
members  of  a  country  or  nation.  Full  citizenship  implies  memlK'rslii])  in  the  nation, 
but,  more  than  that,  it  imitlies  com]jlete  political  rigiits :  it  is  thus  the  fullest  e.\pres- 
sion  of  the  relation  of  tlie  imliviilual  to  the  .State. 

"Its  conditions  have  varied  from  time  to  time:  in  ancient  Greece  and  Rome  it  de- 
pended on  citizenship  in  the  governing  city,  in  the  ^liddle  Ages  on  freedom  (  Volksfrei- 
heit),  and  later  ou  the  rights  of  a  privileged  class,  and  ou  landed  property.  In  modern 
States  it  has  often  become  almost  coextensive  with  membership  in  the  n.ation  (  Volks- 
genossenschaft). 


CHAP.  IV.]  NATIVES,    ALIENS,   CITIZENS.  467 

"  The  followiufi'  limitations  are  uow  generally  recognized  :  — 

"  1.    Women  are  exehuleJ  (see  above,  cii.  xx.). 

"  2.  Elinors  are  exc-luJed.  on  tlie  ground  tliat  tiie  exercise  of  political  rights  demands 
mature  judgment. 

"  Some  modern  States  fix  the  majority  for  political  purposes  at  a  different  age  from 
that  of  private  law.  There  is  some  reasou  for  fixing  it  later,  for  it  is  easier  to  juilge 
clearly  on  ordinary  matters  than  on  politics.  In  France,  England,  North  America  and 
Italy  political  and  civil  majority  are  both  fixed  at  twenty-one,  and  in  some  German 
States  also,  e. //.,  Bavaria ;  but  iu  Prussia,  the  German  Empire.  Spain  and  Tortugal.  the 
([ualifiration  for  a  vote  is  twentv-five  vears.  in  Austria  twenty-four.  Iu  Switzerland 
some  canton>  fix  the  political  majority  earlier  than  the  civil,  generally  at  the  comiile- 
tion  of  the  twcitiech  vear. 

"3.  \"ariuns  uevsoiis  are  exelm'.ed  whose  civil  status  has  been  impaired  or  lost  —  e.g., 
criminals,  declared  sjjendthrifcs,  bankrupts,  or  persons  iu  receipt  of  poor-relief. 

"  JMauy  States  require  further  ijualifications  :  — 

"_4.  Arertaiu  degree  of  outward  independence,  variously  defined  in  different  States. 
In  earlier  German  law  the  cjualification  was  occupation  of  land  or  separate  housidiold 
('a  hearth  of  one's  own')  ;  iu  recent  GernuTU  law  independent  occiiixition  and  active 
membership  in  a  commune.  The  former  \iew  has  i)revailed  in  England  and  some 
States  of  North  America,  the  latter  has  found  a  place  in  n^odern  Gernum  constitutions. 
It  excludes  all  hired  servants,  ofteu  too  the  workers  in  factories,  at  least  the  lower 
class  of  them,  and  most  journeymen  craftsmen. 

"  Other  modern  States  have  moved  iuthe  direction  of  universal  suffrage,  and  relaxed 

— ^ —  ^  .  . 

or  abolished  this  nualifii-ation.  Such  are  the  Swiss  constitutions  since  1S30,  the  consti- 
tutions of  the  Erench  licpublics  of  I84S  and  1870;  of  the  Erench  Empire,  the 
North-German  Confederati^)n  of  18G7.  the  Gernian  Empire  of  1871,  and  the  Greek  Con- 
stitution of  1864.  The  United  States  are  following  the  same  democratic  tendency  of 
the  age. 

"  .T.  In  some  States  citizen  rights  are  conditional  on  the  possession  of  a  certain  amount 
of  property.  It  is  (juite  right  to  make  property  an  important  factor  in  the  distribution 
of  voting  power,  but  it  is  a  violation  of  the  idea  of  the  State  to  exclude  a  man  from  the 
rights  of  a  citizen  on  the  ground  of  insufticient  projjertv,  provided  that  he  is  morally 
and  mentally  capable  of  taking  part  in  public  duties,  and  is  iu  an  independent  position. 
If  property  is  interpreted  tb'mean  income  or  earnings,  and  the  limit  is  put  at  a  modest 
subsistence,  there  is  no  objection  to  it,  but  it  is  then  equivalent  to  the  preceding  quali- 
fication. The  result  is  the  sameiu  constitutions  such  as  those  of  the  United  States,  the 
Bavarian  of  1848,  and  to  some  extent  those  of  Au.stria  and  Prussia,  where  the  franchise 
depends  on  payment  of  direct  taxes. 

'•  6.  In  Christian  States,  till  lately,  a  profession  of  Christianity  was  i-eguired.  Jews, 
Mohammedans  and  others,  though  tolerated,  were  excluded  from  political  rights.  Dur- 
in"- t!ie  Mitldle  Aires  religion  and  law.  Church  and  State,  were  closely  associated.  Ex- 
clusion from  the  religious  society  meant  exclusion  from  the  political.  Toleration  was 
the  utmost  that  unbelievers  could  hope  for.  Even  within  the  Christian  pale  difference 
of  faith  carried  with  it  political  consequences.  In  some  countries  only  Catholics,  in 
others  only  Protestants,  acquired  full  rights.  The  peace  of  Westphalia  put  Catholics 
and  Protestants,  in  Germany,  on  an  equality  of  civil  rights,  but  not  ior  political. 

"The  (ierman  Confederation  of  1815  established  political  equality  for  the  recognized 
religious  parties  in  Germany,  Catholics,  Lutlieraus,  and  Calvinists  (Eeformirten),  but 
left  the  position  of  other  sects  uncertain. 

"  In  modern  States  there  is  a  decided  tendency  to  make  the  exercise  of  political 
rights  entirely  independent  of  religious  creed.  This  is  hy  no  means  entirely  due  to 
religious  indifference.  When  the  American  Congress  of  1789  forbade  the  passing  of 
any  law  establishing  a  dondnant  religion,  it  did  not  mean  that  it  was  indifTerent  to  the 
power  of  Christianity,  nor  did  it  intend  to  hinder  the  State  in  its  duty  of  sujjporting 
Christian  institutions."  ...  —  Bluntschli.  Thecru  of  the  ,SUUe,  Clarendon  Press 
Translation  (1885),  195.  —  Ed. 


468  PEMBINA    MINING   AND   MILLING   CO.    V.    PA.  [CHAP.  IV.  ,^^ 


In  Pembina  Mining  and  M'dUng  Co.  v.  Pa.  125  U.  S.  181  (1887), 
the  question  was  on  the  vahditv  of  a  Pennsylvania  statute  rcquiiitig  an 
annual  license  fee  from  a  Ibrei^n  oor|)oration  wliich  ^^  does  not  invest 
and  use  its  capital  in  this  Coniinonweallh."  Tn  holdino-  it,  goocl,  FirxD, 
J.,  for  the  court,  said:  "The  clauses  of  the  Federal  Constitution, 
witii  which  it  was  urged  in  the  State  Supreme  Court  that  the  statute 
conllicts,  are  the  one  vesting  in  Congress  the  powex-  to  regulate  foreign 
and  interstate  commerce,  the  one  declaring  that  the  citizens  of  each 
State  are  entitled  to  the  privileges  and  immunities  of  citizens  in  the 
several  States,  and  the  one  embodied  in  the  Fourteenth  Amendment 
declaring  that  no  State  shall  den}*  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

"1.  It  is  not  perceived  in  what  way  the  statute  impinges  upon  the 
commercial  clause  of  the  Federal  Constitution.  .   .   . 
<j>tjjlji(j^  \       "2.  Nor  does  the  clause  of  the  Constitution  declaring  that  the  '•  citi- 
l^d  S-    zens  of  each  State  shall  be  entitled  to  all  privileges  and  immunities  of 
iJrLAA.'^'    citizens  in  the  several  States '  have  any  bearing  upon  the  question  of 
^ZUn^r   ,    the  validity  of  the  license  tax  in  question.     Corporations  are  not,  citi- 
^auru    /-   .  /.zetis  within  the  meaning:  of  that  clause.     This  was  expressly  held  in 
-J    f  _^  Paul  V.  Mrf/iuia.     In  that  case  it  appeared  that  a  statute  of  Virginia, 
f  ^^'^  '-^^  passed  in  P'cljruary,  18G6,  declared  that  no  insurance  company  not  in- 
corporated under  the  laws  of  the  State  should  carry  on  business  witliin  / 
her  limits  without  previously  obtaining  a  license  for  that  purpose,  and  ^  tMVP- 
.         that  no  license  should  be  received  by  the  corporation  until  it  had  depos-  ~{/un\_    v* 
^''^''^'^''^^*^^ ited  with  the  treasurer  of  the  State  bonds  of  a  designated  character  and             j- 
%  \\P\A-4V\^  amount,  the  latter  varying  according  to  the  extent  of  the  cai)ital  em-  / 

J •         ployed.     No  such  deposit  was  required  of  insurance  companies  incor-   i\nJthji/\, 

/lA  j»?t      l)orated  by  the  State  for  carrying  on  their  business  within  her  limits. 


ntiA- 


^  ^  A  subsequent  statute  of  Virginia  made  it  a  penal  offence  for  a  person     rK^^ci^i' 
to  act  in  the  State  as  an  agent  of  a  foreign  insurance  company  without 


**-*'^  _  to  act  in  the  State  as  an  agent  oi  a  foreign  insurance  company  without  ^  jjh 

jtJp-^^-^      such  license.     One  Samuel  Paul,  having  acted  in  the  State  as  an  agent      m 

^J^Xu^j£a../>^, for  a  New  York  insurance  company  without  a  license,  was  indicted  and  ^^kn/u/W' 

^  convicted  in  a  Circuit  Court  of  Virginia,  and  sentenced  to  pa}-  a  fine  of  ^   nJLe^ 

$50.     On  error  to  the  Court  of  Appeals  of  the  State  the  judgment  was  /       \    . 


affirmed,  and  to  review  that  judgment  the  case  was  brought  to  this  court,  f^''^^^^ 

Here  it -was  contended,  as  in  the  present  case,  that  tlie  statute  of  Vir-  ^JU\MU^ 

.  ..kid^  tx^  ginia  was  invalid  by  reason  of  its  discriminating  provisions  between  her  .(](!, 

;Corporations  and  corporations  of  other  States  ;  that  in  this  particular  it  \jl^  aJ^' 
^'"-'-^             Vas  in  conflict  with  the  clause  of  tlie  Constitution  mentioned,  that  the 

i^-^--^*-*-         '  citizens  of  eacli  State  sliall  be  entitled  to  all  the  privileges  and  immnni-  flVU.  3?^ 

;^^-^,Yvw       ties  of  citizens  in  the  several  States.     But  the  court  answered,  that  cor-  jl 

- ,               porations  are  not  citizens  within  the  meaning  of  tlie  clause  :  that  the  *' 

''~*'*^^^       term  citizens,    as  used  in  the  clause,  api:)lies  only  to  natural  persons,  h  ijij^jj^ 

L  _                 members  of  the  body  politic  owing  allegiance  to  the  State,  not  to  arti-  ^ 

pl              ficial   persons   created  by   the  legislature,    and   possessing   only  such  M-v^^^/ 

attributes  as   the  legislature  has  prescril:)ed  ;   that  the  privileges    and  au  yjvv' 

u^o.-a^        immunities  secured  to  citizens  oT  each" StateTiV'th^e'^eX^ei'M  States  bv  the  (1 

Xt>.  .._.    .        '       ^^  c 


CHAP.  IV.]  PEMBINA   MINING   AND   MILLING   CO.    V.   PA.  469    /  (7 

clause  in  question  are  those  privileges  and  immunities  which  are  com-     ^  a^\\^ 
men  to  the  citizens  in  the  latter  States   under  their  Constitution  and  /J 
laws  b}'  virtue  of  their  citizenship  ;  that  special  privileges  enjoyed  by    fy^  X-^^unq^ 
citizens  in  their  own  States  are  not  secured  in  other  States  by  that         _w       ^/ 
provision ;  that  it  was  not  intended  that  the  laws  of  one  State  should  /^"^ 

thereby  have  anj'  operation  in  other  States  ;  that  they  can  have  sucli    cux  (\  CA/H 
operation  onl}'  by  the  permission,  express  or  implied,  of  those  States ;  .^^^^^^^^.^^    g. 
that  special  privilet;es  which  are  conferred  must  be  enioyed  at  home,       ^  ^       / , 
unless  the  nssoni;  of  other  States  to  tlieir  eniovment  therein  be  given  ;  "T^^^  i^-fyp. 
and  that  a  tyrant  of  corporate  existence  vv^as  a  grant  of  special  privileges    .^i,f^,^x^n,<-,o<ui 
to  the  corporatoi-s.  enabling  them  to  act  for  certain  specified  purposes         J)   '  f    c 
as  a  single  individual,  and  exempting  them,  unless  otherwise  provided,  f?^  >^«''*^^--*'p^ 
from  individual  liability,   which   could  therefore  be  enjoyed  in  other    tELUjLa^ 
States  only  b}^  their  assent.     In  the  subsequent  case  of  Ducat  v.  Chi-     ^    /jLa^ 
cago^  10  Wall.  410,  the  court  followed  this  decision,  and  observed  that  /}  -     ' 

the  power  of  the  State  to  discriminate  between  her  own  domestic  cor-  .{Ja^ -JUAA^^A 
porations  and  those  of  other  States,  desirous  of  transacting  •business  /       ' Ai/d 
within  her  jurisdiction,  was  clearly  established  by  it  and  the  previous/  ^ 

case  oi  Augusta  \.  Earle,  13  Pet.  519,  and  added  that  'as  to  the  na-  /Xc<.-CU.  ^^ 
ture  or  degree  of  discrimination,  it  belongs  to  the  State  to  determine,     ^/\A/{yuX\^'^ 


A^- 


subject  only  to  such  limitations  on  her  sovereignty  as  may  be  found  in 
the  fundamental  law  of  the  Union.'     Philadelphia  Fire  Association  v.      ^-^-^^^ 
Mio  York,  119  U.  S.  110,  120.  ,p^  i^ 

"3.  The  application  of  the  Fourteenth  Amendment  of  the  Constitu-     ^  '^ 

tion  to  the  statute  imposing  the  license  tax  in  question  is  not  more     (r^ 
apparent  than  the  application  of  the  clause  of  the  Constitution  [as]  to  the  oua^  \^,a^^u^ 
rights  of  citizens  of  one  State  to  the  privileges  and  immunities  of  citi-         G  '      -/^ 
zens  in  other  States.     The  inhibition  of  the  amendment  that  no  State  C 

shall  deprive  any  person  within  its  jurisdiction  of  the  equal  protection  /Q^<^uCA  *^ 
of  the  laws  was  designed  to  prevent  any  person  or  class  of  persons  from      "^^   j^^^ijtl 
being  singled  out  as  a  special  subject  for  discriminating  and  hostile 
legislation.     Under  tlic  designation  of  i:)ersou  there  is  no  doubt  that  a  .  OaaM    ^^~' 
private  corporation  is  included.     Such  corporations  are  merely  associa-,'    Lf^x^i\, 
tions  of  individuals  united  for  a  special  purpose,  and  |)ermitted  to  dpi    "      Yj 
business  under  a  particular  name,  and  have  a  succession  of  members     Ciyy^M'^^ 
without  dissolution.     As  said  by  Chief  Justice  Marshall,   'Tiie  great  1  ^ 

object  of  a  corporation  is  to  bestow  the  character  and   properties  of  jj}'  5^  '"^  ~ 
individuality  on  a  collective  and  changing  bod}'  of  men.'      Procidence   /^^y^^j^^d- 
Bank  v.  Billings,  4  Pet.  514,  5G2.     The  equal  protection  of  the  laws 
whicli  tliese  bodies  mny  chiim  is  only  such  as  is  accorded  to  similar  /ii-A.-*^^^^-^^  ^ 
associations  within  the  jurisdiction  of  tlie  State.     The  plaintiff  in  error    (l-vx-^^v^ 
is  not  a  corporation  within  the  jurisdiction  of  Pennsylvania.     Tlie  otllce    e^^.a^<u. 
it  hires  is  within  sucli  jurisdiction,  and  on  condition  that  it  pays  the  0    ^ 

required  license  tax  it  can  claim  tlic  same  protection  in  the  use  of  the    <ma.^Aa^am^ 
ofHce  that  any  other  corporation  having  a  similar  oflice  may  claim.     Lt  -  XM.fi\    . 
would  then  have  the  equal  protection  of  the  law  so  far  as  it  had  anything 
within  the  jurisdiction  of  the  State,  and  the  constitutional  amendment 


'^^^*    470   ^^     '^  ^aavw  ^.^^j,    ^^^    CORPORATIONS.     A.vx>^i»^^   [CHAP.  IV-     ^^^ 

^  <-     rcqnircs  notliinf;:  more.     The  State  is  not  iM-()liil)itc(l  from  (liscriiiiinntin^ 

—  ^•^**^-^'^'iii  the  privileax's  it  may  uraiil  to  I'uitj^ii   CDrixualious  as  :i  coinluioii  of 
^^^j^^i^Jt",         their  doiiiL;'  liiisiiiess  or  liiriiiu'  olliccs  witliiii  its  liinils.  pi-uviclcil   ahva^•s 
such   (li-^ci  iiiiinatiMii   ^loes   nut   interfere   wilh  any  transaction   by   siicli 
corporalions  of  interstate  or  foreign  connneree.      It  is  not  every  coi'po- 
ration,  hiwfnl  in  tiic  State  of  its  creation,  that  other  States  ma\'  he  will- 
i  ing  to  nchnit  witliin  tlieir  inrisdietion  or  consent  that  it  haye  (jlli(!es  in 

-^^y"^'     tliem  ;  such,   for  example,   as  a  corporation   for  lotteries.     And   eyen 
At     j^,^      where  the  business  of  a  foreign  corporation  is  not  unlawful  in   other 
States  the  latter  may  wish  to  limit  the  number  of  such  corporations,  or 
■  ''"-^  to  subject  their  business  to  such  control  as  would  be  in  accordance  with 

»i,«jiNvt--«-^  the  polic}"  governino:  domestic  corporations  of  a  similar  character.    The 
^_J^^'        States  may,  therefore,  require  for  the  admission  within  their  limits  of 
'  the  corporations  of  other  States,  or  of  any  number  of  them,  such  con- 

'^'♦■vv.  ditions  as  thev  may  choose,  without  acting  in  conflict  with  tlie  conclud- 
ing ))royision  of  the  first  section  of  the  Fourteenth  Amendment.  As  to 
the  meaning  aud  extent  of  that  section  of  the  amendment  see  JJarbier 


'-^-'^1  ^  X.Connolly,  113  U.S.  27;  Soon  Hing  y.  Crowley,  113  U.S.  703; 
c\  ia.(/vnv«.  ^lissouri  v.  Levns,  101  U.  S.  22,  30 ;  Missouri  Pacific  Maihoay  Co. 
ti   '     XX>JL  ^'-  Htcmes,  115  U.  S.  512  ;    Yick  Wo  v.  Hojykins,  118  U.  S.  356  ;  Ilayes 

v.  3/issouri,  120  U.  S.  G8. 
ia/^K^^^         "  The  onl}'  limitation  upon  this  power  of  the  State  to  exclude  a  foreign 
yui-  corporation  from  doing  business  within  its  limits,  or  hiring  offices  for 

.  .  that  purpose,  or  to  exact  conditions,  for  allowing  the  corporation  to  do 

-  U4A»A**-  'business  or  hire  offices  there,  arises  where  the  corporation  is  in  the 
^rt  "^  emplo}'  of  the  Federal  goyernment,  or  where  its  business  is  strictly 

commerce,  interstate  or  foreign.     The  control  of  such  commerce,  being 
J  i^^jJX^     in  the  Federal  government,  is  not  to  be  restricted  by  State  authority." 

f.  Judgment  offi,rmed} 

(K^  V»_a|a        -j^j-j.  jugTicE  Bradley  was  not  present  at  the  argument  of  this  cause 
iH  and  took  uo  part  in  its  decision. 

NOTE. 

"This  eleventh  section  [of  the  .Judiciary  Act  of  1789]  deals  only  with  citizens,  and  if 
xAslA  vvX     has  been  from  first  to  last  admitted  that  corporations  are  not  citizens.     Thev  are  politi- 

lA  ry^SL  cal  beings,  created  bv  the  law,  and  cannot  sustain  the  character  of  citizens.  .  .  . 
i,  l\MrA*-  „  J  suppose  it  may  fairly  be  .said,  that  neither  the  framers  of  the  Constitution  nor  the 
a.  d^A^ftA/  framers  of  the  Judiciary  Act  had  corporations  in  view.  .  .  .  When  this  subject  first 
came  before  the  Supreme  Court,  they  took  a  pretty  ri<^id  view  of  it.  Thev  considered 
'  d± /La><a.  that  a  corporation  created  bv  the  law  of  a  itarticnlar  State  was  like  a  partnerslii[) ;  it 
L  O-Kr^-A  had  some  privileg;-es  which  partnerships  liad  not,  but  in  sulist;uK-c  thev  considered  it  to 
/  H  ^  be  a  partnersliip.  and  they  went  on  from  that  view  to  this  inference  :  that  if  all  the 

members  of  a  corporation  were  citizens  of  one  State,  and  tlie  partv  on  tiie  other  side 
■was  a  citizen  of  a  different  State,  bv  alleging  that  fact  iurisdictiou  could  be  obtained. 
This  was  held  in  the  case  of  The  Bank  of  the  United  States  v.  Deveaux,  5  Cranch,  01 ; 


7 


1  Compare  Horn  Silver  Mining  Co.  v.  X.  Y.  143  U.  S.  305.—  Ed. 


CHAr.  IV.l  NOTE.  471  '^     >  >  « 


and  iu  the  case  of  The  Hope  Insurance  Company  v.  Boardman,  in  the  same  book,  i^age  57.  -'Oj^^^ 

The  two  cases  were  considered  together ;  and  it  was  repeated  afterwards,  so  hue  as  the    ^>         '  ,i 

case  of  'I'/te  Bank  of  Virkshunj  v.  Slocunih,  14  Peters,  CO.     Now,  you  will  readily  see    C^JlAAAjfW^^v^. 

that  there  were  very  few  cases  of  large  corporations  where  ail  tlie  niemlicrs  were  citi-  _ft  ,    0 

zens  of  one  State,  and  that,  if  it  were  necessary  to  aver  that  fact  on  tlie  record,  tlie    Lv^*^^    ^-''^ 

jurisdiction  of  the  courts  of  the  United  St.ates  would  have  a  vcrv  narrow  application  to  / 

corporations.     I  suppose  tiiere  is  no  considerable  corporation  created  by  eitlier  of  the  . 

States  in  which  tliere  are  not  one  or  more  persons  who  are  stockholders  outside  of  tlie     i.^f-#-X(.   <<^*-*--<> 

State.     Well,  this  was  a  dilKculty  which  had  been  encountered  before  in  tlie  history  of  _^ 

the  law.     If  you  should  take  the  trouble  to  look  into  Mr.  Maine's  admirable  book  ou     Py"  ^r~ 

the  History  of  Ancient  Law,  you  will  find  mentioned  there  three  cases  of  an  analogous    «//  .       )    -~ 

character.     The  first  arose  under  the  Roman  law,  where  it  was  necessary,  iu  order  to    e*^-^-*^   o^ 

give  their  important  courts  jurisdiction,  to  allege  that  the  plaintiff  was  a  Roman  citi-  ^~t^iJ^-<^A     (Xj(n/^ 

zen ;  but  after  the  commerce  of  the  city  and  the  empire  became  so  extended,  and  such  . 

a  number  of  foreigners  had  important  rights  and  interests  to  be  vindicated  iu  the    ^iAriyjX4i(XjM 

courts,  tliey  introduced  what  tliey  called  'a  fiction'  (fictio),  which  meant  that  any-    ^v^'l         £^ 

body  who  had  a  proper  cause  of  complaint  might  allege  that  he  was  a  Roman  citizen, 

and  that  allegation  should  not  be  denied.     In  other  words,  they  introduced,  by  their    l^/^x    tyiTUAAi 

own  authority,  a  rule  that  a  falsehood  might  be  stated  on  the  record,  and  that  the  otlier  > 

party  could  not  allege  tlie  truth.     Well,  there  were  two  instances  in  England  like  this.      ^  A-^^^  a^u<l^ 

One  was  where  the  Court  of  Exchequer  obtained  a  great  amount  of  jurisdiction  by  an      Qnjjy-    Jr\i 

allegation  in  the  declaration  that  the  plaintiff  was  a  debtor  to  the  king,  and  could  not  --J 

pay  his  debt  unless  tlie  court  would  help' him  to  recover  what  he  demanded  in  that    jljiJl'aJi^XAy^^ 

action  ;  and  that  allegation  was  held  not  to  be  traversable.     A  similar  allegation  was       i  i 

permitted  by  the  Court  of  King's  Bench,  in  order  to  obtain  jurisdiction  as  against  the  '^^•^^      |J/l-*-~ 

Common  Pleas;  that  the  plaintiff  was  in  the  custody  of  the  marshal  of  the  Court  of  i   4-^ 

King-'s  Bench,  and  consequently  could  not  go  into  any  other  court  and  prosecute  his    />iXxAA.ty|vlA^V^ 

rights.     That  was  held  not  to  be  traversable.     Now,  I  want  to  bring  your  attention  to 

the  case  of  The  Ohio  and  Mississippi  Railroad  Companij  v.  Whee/er,  1  Black,  286,  and 

you  will  see  how  this  decision  corresponds  with  the  progress  made  by  the  Roman  and 

Englisli  coui'ts  on  similar  subjects.     Some  parts  of  the  marginal  note  express  clearly 

wh.at  I  wish  to  bring  to  your  attention:  'A  corporation  exists  only  in  contemplation/ 

of  law  and  by  force  of  law,  and  can  have  no  legal  existence  beyond  the  bounds  of  the 

sovereignty  by  which  it  is  created,  and  it  must  dwell  in  the  place  of  its  creation.'     All 

that  had  been  previously  settled,  and  is  unquestioned  law.      'A  corporation  is  not  a 


citizen  within  the  meaning  of  the  Constitution,  and  cannot  maintain  a  suit  iu  the  courts 
of  tlie  United  States  against  a  citizen  of  a  (liffereut  State  from  that  by  which  it  was 


created,  unless  tlie  persons  who  comprise  the  corporate  body  are  .all  citizens  of  that 
State.'  That  is  the  old  law.  '  In  such  cases,  tliey  mav  sue  by  their  corporate  name, 
averring  the  citizensliip  of  all  the  mcinl)ers,  and  such  a  suit  would  be  regarded  as  the 
ioint  suit  of  individual  persons,  nniteil  together  in  a  corporate  body,  and  .acting  under 
the  .authority  conferred  uiiou  tliem  for  tlio  more  convenient  transaction  of  business, 
and  conseiiueiitlv  ciititleil  to  niaintaiu  a  suit  in  the  courts  of  the  United  St  ate  s  against 
tlie  citizen  of  anv  State.'     Tliat  is  the  old  law  also. 

" '  Where  a  corporiiiinn  is  crcateil  hy  the  laws  of  a  St_ate  '  (we  now  .advance  to  some 
new  doctrine),  'the  It-Mal  uresuiiiDUou  is  tliat  its  niembers  are  citizens  of  the  State  in 
whicli  alone  the  corporate  bodv  has  a  legal  existence.  That  is  laid  down  as  a  legal 
prcsuni])ti<in. 

" '  A  suit  by  or  against  a  corporation  in  its  corporate  name  mav  be  presumed  to  be  a 
suit  by  or  against  citizens  of  the  State  which  created  the  corporate  body,  and  no  aver- 
nieiit  or  denial  to  the  contrary  is  admissible  for  the  purpose  of  withdrawing  tlie  suit 
from  the  jurisdiction  of  a  court  of  tiie  United  .States.'  There  is  tlie  Roman  '  fiction.' 
The  court  first  decides  the  law,  presanies  nil  the  memliers  arc  riti/i  iis  d'  tlic. State 
whicli  crL-ated  tlie  corporation,  and  tlien  says  you  shall  not  travcrsi.'  that  iiirsniii|itiop  ; 
and  that  is  the  law  now.  Under  it,  the  courts  of  the  I'nited  St.gtcs  constantly  entertain 
suits  bv  or  against  corporations.  It  has  been  so  frequently  settled,  that  tliere  is  not 
the  .slightest  reason  to  sujipose  th.at  it  will  ever  be  departed  from  by  the  court.  It  h.as 
been  repeated  over  and  over  agtiin  in  subsequent  decisions ;  and  the  Supreme  Court 


472 


FKEE   NEGEOES,   SLAVES. 


[chap.  IV. 


seems  entirely  satisfied  that  it  is  the  ritrlit  ground  to  staud  upon ;  and,  as  I  am  now 
going  to  state  to  you,  they  have  applied  it  in  some  cases  which  go  beyond,  much  he- 
youd,  these  decisions  to  which  I  have  referred.  So  that  wiien  a  suit  is  to  be  hrought 
in  a  court  of  the  United  tStates  by  or  against  a  cori>oration,  hv  reason  of  the  character 
of  the  parlies,  vou  have  onlv  to  sav  that  this  curporation  (after  naming  it  correctly) 
was  created  by  a  law  of  the  StaU;  oi  M:issachu?^ftts,  ami  lias  its  i)i-incii)al  place  of  Imsi- 
ness  in  that  btate ;  and  that  is  cxaeilv  tlu:  same  in  its  cuusccjucnces  as  if  yju  could 
allege,  and  did  alle!j.'e.  that  tlie  curporatiuu  was  a  citizen  uf  that  State.  According  to 
the  present  decisions,  it  is  nut  necessary  vou  should  sav  that  the  members  of  that  cor- 
poration are  citizens  of  Massacliusetts.  They  have  passed  beyond  that.  Youhave 
only  to  sav  that  the  corporation  was  created  by  a  law  of  the  State  of  Massachusetts. 
and  has  its  principal  place  of  business  in  that  State ;  and  that  makes  it.  for  the  pur- 
poses of  jurisdiction,  tlie  same  as  if  it  were  a  citizen  of  that  State."  —  Cuktis,  Jurisd. 
U.  S.  Courts,  127-133.1 


Ji 


"It  is  certain  that  the  Constitution  and  statute  law  of  New  York 
(Const,  art.  2,  N.  Y.  Revised  Statutes,  i.  12G,  sec.  2)  speaks  of  men  of 
color  as  being  cUize7is,  and  capable  of  being  freeholders,  and  entitled 
to  vote.  And  if,  at  common  law,  all  human  beings  born  within  tlie 
legiance  of  the  king,  and  under  the  king's  obedience,  were  natural-born 
subjects,  and  not  aliens,  I  do  not  perceive  whj'  this  doctrine  does  not 
appl}'  to  the  United  States,  in  all  cases  in  which  there  is  no  express 
constitutional  or  statute  declaration  to  the  contrary.  Blacks,  whether 
born  free  or  in  bondage,  if  born  under  the  iurisdiction  and  allegiance  of 
the  United  States,  are  natives,  and  not  aliens.  They  are  what  the  com- 
mon law  terms  natural-born  sul)iects.  Subjects  and  citizens  are,  in  a 
degree,  convertible  tern:is  as  applied  to  natives  ;  and  though  the  term 
citizen  seems  to  be  appropriate  to  republican  freemen,  yet  we  are,  equally 
with  the  inhabitants  of  all  other  countries,  subjects,  for  we  are  equally 
bound  by  allegiance  and  subjection  to  the  government  and  law  of  the 
land.  The  privilege  of  voting,  and  the  legal  capacity  for  office,  are  not 
essential  to  the  character  of  a  citizen,  for  women  ai-e  citizens  without 
either  ;  and  free  people  of  color  may  enjoy  the  one,  and  may  acquire  and 
hold  and  devise  and  transmit,  by  hereditary-  descent,  real  and  personal 


estates.     The  better  opinion,  I  should  think,  was,  that  negroesjor  other 
slaves,  born  within  and  under  the  allegiance  of  the  United  States,  are 
natural-born  subjects,  but  not  citizen s .      Citizens,  under  our  Constitu- 
tion and  laws,  mean  free  inhabitants,  born  within  the  United  States,  or 
naturalized  under  the  law  of  Congress.     If  a  slave,  born  in  the  TTnit^d 
States,  be  manumitted,  or  otherwise  lawfully  discharged  from  bondage, 
oil  if  a  ])lack  man  be  born  within  the  United  States,  and  born  free,  he  1 
becomes  thenceforward  a  citizen,  but  under  such  disal^ilities  as  the  laws  j 
of  the  States  respectively  may  deem  it  exijcdient  to  prescribe  to  free  | 
persons  of  color.''  —  2  Kent's  Com.  258,  n. 


1  Eeprinted  by  permission.     This  hook,  pnbli.shed  in  1880,  consists  of  a  course  of 
lectures  given  by  Judge  Curtis  at  the  Haryard  Law  School  in  1872-73.  —  Ed. 


CHAP.  IV  j 


STATE   V,   MANN. 


473 


STATE  V.   MANN. 
Supreme  Court  of  North  Carolina. 

[2  Dev.  263.] 


c®4f. 


Tr(/N—  C»^/«_«-.    <y^^J,/>  c»_x.-0?Jv     <x>-«ji 


The  defendant  was  indicted  for  an  assault  and  battery  upon  Lydia,    /  ^     -i 

the  slave  of  one  Elizabetli  Jones.  ^ 

On  tlie  trial  it  appeared  that  the  defendant  had  hired  tlie  slave  for  a    "^'^^^-^-^^^  "n^ 
year — that   during   the  term,   the  slave   had  committed  some   small  -^J^   ^viltvAM.  1 
otfence.  for  which  the  defendant  undertook  to  chastise  her  —  that  while  _jri       ,   .         a 
in  the  act  of  so  doino",  the  slave  ran  oif,  whereui^on  the  defendant  called    i^^^  cAj^  -  ^vi/ 
upon  her  to  stop,  which  being  refused,  he  shot  at  and  wounded  her.         i»^(x<K  ji~*^^^M^ 

His  Honor,  Judge  Daniel,  charged  the  .jury;  that  if  they  believed,  ^  4    ,^  aajjuJ 
the  punishment  inflicted  by  the  defendant  was  cruel  and  unwarrantable, 
and  disproportionate  to  the  offence  committed  by  the  slave,  that  in  law 
the  defendant  was  guilty,  as  he   had  only  a  special  property  in  the  AvrouVliX*^ 

A  verdict  was  returned  for  tlie  State,  and  the  defendant  appealed.       _        vi 
No  counsel  appeared  for  the  defendant.     The  Attoniei/-  General  con-  '  n 
tended,  that  no  difference  existed  between  this  case  and  that  of  The    ^^^"^  - 


CK/^-^\ 


to*>k 


State  V.  Hall,  2  Hawks,  582. 
calculated  to  produce  death. 


In  this  case  the  weapon  used  was  one   oO  >-^  •  v\^  "-^ 
He  assimilated  the  relation  between  a    \<vv*.^iA  v*^ 


master  and  a  slave,  to  those  existing  between  parents  and  children,  .  Q 

masters  and  apprentices,  and  tutors  and  scholars,  and  upon  the  limita-    UC^^^  ck^ra^o. 


tions  to  the  right  of  the  superiors  in  these  relations,  he  cited  Russell  on 
Crimes,  866. 

RuFFiN,  J.  A  judge  cannot  but  lament,  when  such  cases  as  the 
present  are  brought  into  judgment.  It  is  impossible  that  the  reasons 
on  which  the^-  go  can  be  appreciated,  but  where  institutions  similar  to 
our  own,  exist  and  are  thorough!}'  understood.  The  struggle,  too,  in 
the  judge's  own  breast  between  the  feelings  of  the  man,  and  the  duty 
of  the  magistrate  is  a  severe  one,  presenting  strong  temi)tation  to  put 
aside  such  questions,  if  it  be  possible.  It  is  useless,  however,  to  com- 
plain of  things  inherent  in  our  political  state.  And  it  is  criminal  in  a 
court  to  avoid  any  responsibilit}'  which  the  laws  impose.  With  what- 
ever reluctance,  therefore,  it  is  done,  the. court  is  compelled  to  express 
an  opinion  upon  the  extent  of  the  dominion  of  the  master  over  the 
slave  in  North  Carolina. 

The  indictment  charges  a  batterj'  on  Lydia,  a  slave  of  Elizabeth 
Jones.  Upon  the  face  of  the  indictment,  the  case  is  the  same  as  The 
State  V.  Hall,  2  Hawks,  582. 

No  fault  is  found  with  the  rule  there  adopted  ;  nor  would  be,  if  it 
were  now  open.  But  it  is  not  open ;  for  the  question,  as  it  relates  to  a 
batter}-  on  a  slave  b}'  a  stranger,  is  considered  as  settled  by  that  case. 
But  the  evidence  makes  this  a  different  case.     Here  the  slave  had  been 


J 

^    VUnrC 


CKAAJ- 


4 


o-CLx  ottvu^ci^  A/u^aXuri^.      (a  /l/^^    iu^<^  fyi^^rj^^)  a/^  ^^^-^^^^^^ 


474  STATE  V.   MANX.  [CHAP.  IV. 

hired  b^'  the  defendant,  and  was  in  his  possession  ;  and  the  battery 
was  connnitted  during  the  period  ol'liiring.  With  the  habihties  of  the 
hirer  to  the  <j:cneral  owner,  for  an  injury  permanently  iuiijairing  the 
vahie  of  the  slave,  no  rule  now  hiid  down  is  intende(I  to  interfere. 
.  That  is  left  ui)on  the  general  doctrine  of  bailuient.  The  in(|uiry  here 
I  is,  ^yhether  a  eruel  and  unreasonable  battery  on  a  shive,  by  the  hirer, 
/  is  indictable.  The  judge  below  instructed  the  jury  that  it  is.  He 
'  seems  to  have  put  it  on  the  ground,  that  the  defendant  had  but  a 
special  property.  Our  laws  uniformly'  treat  the  master  or  other  person 
having  the  possession  and  command  of  the  slave,  as  entitled  to  the 
same  extent  of  authorit}'.  ,  The  object  is  the  same  —  the  services  of 
the  slave  ;  and  the  same  powers  must  be  confided.  In  a  criminal  \)\o- 
ceeding,  and  indeed  in  reference  to  all  other  persons  but  the  general 
owner,  the  hirer  and  ])ossessor  of  a  slave,  in  relation  to  both  riuhts  and 
duties,  is  for  the  time  being,  the  owner.  This  opinion  would,  perhaps, 
dispose  of  this  particular  case  ;  because  the  indictment,  which  charges 
a  battery  upon  the  slave  of  Elizabeth  Jones,  is  not  supported  by  proof 
of  a  battery  upon  defendant's  own  slave  ;  since  different  justifications 
may  be  applicable  to  the  two  cases.  But  upon  the  general  question, 
w^hether  the  owner  is  answerable  criminal  iter,  for  a  battery  upon  his 
own  slave,  or  other  exercise  of  authority  or  force,  not  forbidden  by 
statute,  the  court  entertains  but  little  doubt. 

That  he  is  so  liable,  has  yet  never  been  decided  ;  nor,  as  is  known, 
been  hitherto  contended.  There  have  been  no  prosecutions  of  the  sort. 
The  estal)lished  habits  and  uniform  practice  of  the  country  in  this 
respect,  is  the  best  evidence  of  the  portion  of  power  deemed  by  the 
whole  community  requisite  to  the  preservation  of  the  master's  dominion. 
If  we  thought  diflTerentk,  we  could  not  set  our  notions  in  array  against 
the  judgment  of  everybody  else,  and  say  that  this,  or  that  authority, 
may  be  safely  lopped  off.  This  has  indeed  been  assimilated  at  the  bar 
to  the  other  domestic  relations  ;  and  arguments  drawn  from  the  well- 
established  principles,  which  confer  and  restrain  the  authority  of  the 
parent  over  the  child,  the  tutor  over  the  pupil,  the  master  over  the 
apprentice,  have  been  pressed  on  us.  The  court  does  not  recognize 
their  application.  There  is  no  likeness  between  the  cases.  They  are 
in  opposition  to  each  other,  and  there  is  an  impassable  gulf  between 
them,  —  the  dilference  is  that  wliich  exists  between  freedom  and  slavery 
—  and  a  greater  cannot  be  imagined.  In  the  one  the  end  in  view  is  the 
happiness  of  the  youth,  born  to  equal  rights  with  that  governor,  on 
whom  the  duty  devolves  of  training  the  young  to  usefulness,  in  a  sta- 
tion which  he  is  afterward  to  assume  among  freemen.  To  such  an  end, 
and  with  such  a  subject,  moral  and  intellectual  instruction  seem  the 
natural  means  ;  and  for  the  most  part,  they  are  found  to  suffice.  Mod- 
crate  force  is  superadded,  only  to  make  the  others  effectual.  If  that 
fail,  it  is  better  to  leave  the  party  to  his  own  headstrong  passions,  and 
the  ultimate  correction  of  the  law,  than  to  allow  it  to  be  immoderately 
inflicted  by  a  private  person.     With  slavery  it  is  far  otherwise.     The 


_(-/ 


§1jT-^^ 


^  475  ^/^^^^^i  ^ 


CHAP.  IV.]  STATE   V.   MANX. 

end  is  the  profit  of  tlic  master,  his  security  and  the  public  safety ;  tiie  /^    aJlaji^ 
subject,  one  doomed  in  his  own  ])erson,  and  his  posterity,  to  live  with- 
out knowledue,  and  without  the  capacity  to  make  anytliing  his  own,  and  ^  oa  cxArc 
to  toil  that  another  may  rea])  tlie  fruits.     What  moral  considerations  Tv-cc^  (\.' 
shall  be  addressed  to  such  a  being,  to  convince  him  what,  it  is  impos-  cUaUxJi, 
sible  but  that  the  most  stupid  must  feel  and  know  can  never  be  true  —  -t/ 
that  he  is  thus  to  labor  upon  a  principle  of  natural  dut}',  or  for  the  sake  '^'^  U'vi/^ 
of   his  own  personal  happiness  ;    such  services  can  only  be  expected  riy\^<rt<^^-<^^  'rj 
from  one  who  has  no  will  of  his  own  ;  who  surrenders  his  will  in  im-  a 
plicit  obedience  to  tliat  of  another.     Such  obedience  is  the  consequence  C7 
only  of  uncontrolled  authority  over  the  body.     There  is  nothing  else  -'Ia/-(Vd  .i/t/c^-^ 
which  can  operate  to  produce  the  effect.     The  power  of  the  master  •  ^    _/ 
must  be  absolute,  to  render  the  submission  of  the  slave  ])erfect.     I  .          . , 
most  freel}'  confess  my  sense  of  the  harshness  of  this  proposition  :   I  ,4A/VC^ 
feel  it  as  deeph'  as  any  man  can.     And  as  a  principle  of  moral  right, 
every  person  in  his  retirement  must  repudiate  it.     But  in  the  actual 

There  is  no  remedy*.     This  disci- 


condition  of  things,  it  must  be  so. 
pline  belongs  to  the  state  of  slavery.  They  cannot  be  disunited, 
without  abrouating;  at  once  the  rights  of  tlie  master,  and  absolving 
the  slave  from  liis  subjection.  It  constitutes  the  curse  of  slavery  to 
both  the  l)ond  and  free  portions  of  our  population.  But  it  is  inherent 
in  the  relation  of  master  and  slave. 

That  there  ma}-  be  particular  instances  of  cruelt}'  and  deliberate 
barbarity,  where,  in  conscience  the  law  might  properly  interfere,  is 
most  probable.  The  difficulty  is  to  determine,  where  a  court  may  prop- 
erly' begin.  Merely  in  the  abstract  it  may  well  be  asked,  which  power 
of  the  master  accords  with  right.  The  answer  will  probably  sweep 
away  all  of  them.  But  we  cannot  look  at  the  matter  in  that  light. 
The  truth  is,  that  we  are  forbidden  to  enter  upon  a  train  of  general 
reasoning  on  the  sultject.  We  cannot  allow  the  right  of  the  master  to 
be  brought  into  discussion  in  the  courts  of  justice.  The  slave,  to 
remain  a  slave,  must  be  made  sensible,  that  tiiere  is  no  appeal  from  his 
master  :  that  his  power  is  in  no  instance,  usurped  ;  but  is  conferred  b}' 
the  laws  of  man  at  least,  if  not  by  the  law  of  G-od.  The  danger  would 
be  great  indeed,  if  the  tribunals  of  justice  should  be  called  on  to  grad- 
uate the  punishment  appropriate  to  every  temper,  and  ever}'  dereliction 
of  menial  dut}'.  No  man  can  anticipate  the  many  and  aggravated 
provocations  of  the  master,  which  the  slave  would  be  constantl}'  stimu- 
lated by  his  own  passions,  or  the  instigation  of  others  to  give  ;  or  the 
consequent  wrath  of  the  master,  prompting  him  to  bloody  vengeance, 
upon  the  turbulent  traitor  —  a  vengeance  general!}'  practised  with 
impunity,  by  I'eason  of  its  privac}'.  The  court,  therefore,  disclaims 
the  power  of  changing  the  relation,  in  which  these  parts  of  our  people 
stand  to  each  other. 

We  are  happy  to  see,  that  there  is  daily  less  and  less  occasion  for 
the  interposition  of  the  courts.  The  protection  alread}'  afforded  by 
several  statutes,  that  all-powerful  motive,  the  private  interest  of  the 


476  PRIGG   V.    COMMONWEALTH   OF   PA.  [CHAP.  IV. 

owner,  the  benevolences  toward  each  other,  seated  in  the  hearts  of 
those  who  have  been  born  and  bred  together,  the  frowns  and  deep  exe- 
crations of  the  community  upon  the  barbarian,  wlio  is  guilty  of  exces- 
sive and  brutal  cruelty  to  his  unprotected  slave,  all  combined,  have 
produced  a  mildness  of  treatment,  and  attention  to  the  comforts  of  the 
unfortunate  class  of  slaves,  greatl}-  mitigating  the  rigors  of  servitude, 
and  anicHorating  tlie  condition  of  the  slaves.     The  same  causes  are 
operating,  and  will  continue  to  operate  with  increased  action,  until  the 
disparity  in  numbers  between  the  whites  and  blacks  shall  have  ren- 
dered the  latter  in  no  degree  dangerous  to  the  former,  when  the  police 
now   existing   may   be   further   relaxed.      Tliis   result,   greatly  to    be 
desired,  may  be  much  more  rationally  expected  from  the  events  alluded 
to,  and  now  in  progress,  than  from  any  rash  expositions  of  abstract 
truths,  by  a  judiciarj^  tainted  with  a  false  and  fanatical  philanthropy, 
seeking  to  redress  an  acknowledged  evil,  by  means  still  more  wicked 
and  appalling  than  even  that  evil. 
I       I  repeat  that  I  would  gladly  have  avoided  this  ungrateful  question. 
But  being  brought  to  it,  the  court  is  compelled  to  declare,  that  wliile 
slavery  exists  amongst  us  in  its  present  state,  or  until  it  shall  seem  fit 
;  to  the  legislature  to  interpose  express  enactments  to  the  contrary,  it 
{  will  be  the  imperative  duty  of  the  judges  to  recoo-gize  tlic  rail  dominion 
;  of  tlie  owner  over  tlie  slave,  except  where  the  exercise  of  it  is  forbidden 
I  by  statute.     And  this  we  do  upon  the  ground,  that  this  dominion  is 
j    essential  to  the  value  of  slaves  as  property,  to  the  security  of  the  mas- 
ter, and  the  public  tranouillitv.  greatly  dependent  upon  their  subordina- 
tion  ;  and  in  fine,  as  most  effectually  securing  the  general  protection 
and  comfort  of  the  slaves  themselves. 

Per  Curiam.    Let  the  judgment  below  be  reversed,  and  judgment 
entered  for  the  defendant. 


-7  In  Prigg  v.  Com.  of  Pa.,  16  Pet.  539  (1842),  on  a  writ  of  error  to  the 
'Supreme  Court  of  Pennsylvania,  the  plaintiff  had  been  indicted  under  a 
statute  of  that  State,  of  1826,  for  forcibly  seizing  and  removing  a  negro 
woman  to  be  kept  as  a  slave.     On  a  plea  of  not  guilty  the  jury  found  a 
special  verdict  that  the  woman  was  held  to  service  as  a  slave  under  the 
laws  of  Maryland  and  escaped  into  Pennsylvania  in  1832  :  that  Prjotr  as 
the  owner's  agent,  in  1837,  caused  the  woman  to  be  arrested  as  a  fugitive 
^^^         fromjabor,  under  a  warrant  bv  a  Pennsylvania  magisfnite  and  to  be 
brono-lit  before  the  same  magistrate,  w-ho  refused  to  take  further  cogni- 
zance of  the  case,  whereupon  Prigg  removed  her  and  her  children  and 
fiAXA.  jtdou^d^  gave  them  up  to  her  owner  in  Maryland.     Prip-g  was  found  guilty .  and 
''  the  judgment,  on  error,  was  sustained  by  the  Supreme  Court  of  the  State. 

■  ^^-'^^yy^^^      In  reversing  the  judgment,  the  Supreme  Court  of  the  United  States 
^  (WuM^  (Story,  J.)  said :  "  There  are  two  clauses  in  the  Constitution  upon  the 

/I        ,  ,    subject  of  fugitives,  which  stand  in  juxtaposition  with  each  other,  and  , 

-  A  '■l^liMM.  jjave  been  thought  mutually  to  illustrate  each  other.     They  are  both  | 

-f^y^  iiiyVL     contained  in  the  2d  section  of  the  4th  article,  and  are  in  the  following 


CHAP.  IV.] 


)j-<v-^^<A.Cr 


flfctMZjUAX^  -l4^ 


PPJGG    V.    COJLMONWEALTH    OF   PA. 


477 


words  :  \\-  person  charged  in  any  State  with  treason,  felon}',  or  other 
crime,  wlio  shall  tlee  from  justice,  and  be  found  in  another  State,  shall, 
on  demand  of  the  executive  authority  of  the  State  from  which  he  fled, 
be  delivered  up,  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime.'     / 

"  '  No  person  held  to  service  or  labor  in  one  State  under  the  laws 
thereof,  escaping  into  another,  shall  in  consequence  of  any  law  or  rca:u- 
lation  therein,  be  discharged  from  such  service  or  labor  ;  but  shall  be 
delivered  up,  on  claim  of  the  party  to  whom  such  service  or  labor  may 
be_due.'  O^uf  Lv"-    *^*-**  ^    -   CXo-^w^^^   3, 

"  The  last  clause  is  that,  the  true  interpretation  whereof  is  directl}'  in 
judgment  before  us.  Historically,  it  is  well  known  that  the  object  of 
this  clause  was  to  secure  to  the  citizens  of  the  slaveholding  States  the 
complete  right  and  title  of  ownership  in  their  slaves,  as  property ^  in 
ever}'  State  in  the  Union  into  which  they  might  escape  from  the  State 
where  they  were  held  in  servitude.  The  full  recognition  of  this  right 
and  title  was  indispensable  to  the  security  of  this  species  of  proi)erty  in 
all  the  slaveholding  States  ;  and,  indeed,  was  so  vitp,!  to  the  preserva- 
tion of  their  domestic  interests  and  institutions,  that  it  cannot  be 
doubted  that  it  constituted  a  fundamental  article,  without  the  adoption 
of  which  the  Union  could  not  have  been  formed .  Its  true  design  was 
to  guard  against  the  doctrines  and  principles  prevalent  in  the  non-slave- 
liolding  States,  by  preventing  them  from  intermeddling  with,  or  obstruct- 
ing, or  abolishing  the  rights  of  the  owners  of  slaves. 

"  By  the  general  law  of  nations,  no  nation  is  bound  to  recognize  the  ' 
state  of  slavery,  as  to  foreign  slaves  found  within  its  territorial  domin- 
ions, when  it  is  in  opposition  to  its  own  policy  and  institutions,  in  favor 
of  the  subjects  of  other  nations  where  slavery  is  recognized.  If  it  does 
it,  it  is  as  a  matter  of  comity,  and  not  as  a  matter  of  international  right. 
The  state  of  slavery  is  deemed  to  be  a  mere  municipal  regulation, 
founded  upon  and  liniited  to  the  range  of  the  territorial  laws.  This 
was  fully  recognized  in  Somei'sefs  Case,  Lofft's  Rep.  1  ;  s.  c.  11  State 
Trials  by  Plarg.  340  ;  s.  c.  20  Howell's  State  Trials,  79  ;  which  was 
decided  before  the  American  Revolution.  It  is  manifest  from  this  con- 
sideration, th at  if  the  Constitution  had  not  contained  this  clause,  every 
non-slaveholding  State  in  the  Union  would  have  been  at  libei'ty  to  have 
declared  free  all  runaway  slaves  coming  within  its  limits,  and  to  have 
given  them  entire  immunity  and  protection  against  the  claims  of  their  i^^ 
masters  ;  a  course  which  would  have  created  the  most  bitter  animosities, 
and  engendered  perpetual  strife  between  the  different   States.     The 


:^ 


a.  r^JLi 


UVV.AX. 


tt.t^y>\AAAAC 


clause  was,  therefore,  of  the  last  importance  to  the  safety  and  security 
of  the  Southern  States,  and  could  not  have  been  surrendered  by  them 
without  endangering  their  whole  proi')crty  in  slaves.  The  clause  was 
accordingly  adopted  into  the  Constitution  by  the  unanimous  consent 
of  the  framers  of  it ;  a  proof  at  once  of  its  intrinsic  and  practical 
necessity.  .  .   . 

"  We  have  said  that  the  clause  contains  a  positive  and  unqualified 


^^^   Y^Y^xi^  r:Ji£i..(^XcLAyu^    /XjiJzui^aMcK 


0 

^ 


478  PRIGG   V.    COMMONWEALTH    OF   PA.  [CUAP.  IV. 

«-A  /XtA^  -    .  recognition  of  the  right  of  the  owner  in  the  slave,  unaffected  by  any 
j^jt^t^  Aya-        I  State  law  or  regiihitiou  whatsoever,  because  tliere  is  no  qualification  or 
\x.  CVu  -     restriction  of  it  to  be  found  therein  ;  and  we  have  no  right  to  insert  any, 
)-—        ji  which  is  not  expressed,  and  cannot  be  fairly  implied.      Esi)ecially  are 

f  ^  '  we  estopped  from  so  doing,  when  the  clause  puts  the  right  to  tlic  service 
\  /vcA  **^  ^^.  ^jj^ijy^.  ijpQn  tije  same  ground  and  to  the  same  extent  in  ever}'  other 
iM'tA)|y^-  State  as  in  the  State  from  which  the  slave  escaped,  and  in  which  he 
twC  SCox/^^  ^^'^^^  ^^^^'^  ^"  '•^^^  service  or  labor.  If  this  be  so,  then  all  the  incidents  to 
'that  right  attach  also.  The  owner  must,  therefore,  have  the  riuht  to 
^.\%.  <-w>*-X  seize  and  repossess  the  slave,  which  the  local  laws  of  his  own  State  con- 
\JUj^-  iWvria.  fer  upon  him  as  property  ;  and  we  all  know  that  this  riuht  of  seizure 
5^\.  Q  '  and  recaption  is  universally  acknowlcdt2;ed  in  all  the  slavehuldino:  States. 
lA   XmJI  Indeed,  this  is  no  more  than  a  mere  alliruuuice  of  the  j^rinciplcs  of  the 

■vcoX"  ^JUL  «r^-common  law  applicable  to  this  very  subject.     Blackstone,  J. ,  3  Bl. 
^  Com.  4,  lays  it  down  as  unquestionable  doctrine.     'Recaption  or  re- 

UA  ^^"^         prisal'  (says  he)  'is  another  species  of  remedy  by  the  mere  act  of  the 
Ji^     r  P^i't}'  injt^ii'etl-     This  happens  when  any  one  hath  deprived  anotlier  of 

1^^         his  property  in  goods  or  chattels  personal,  or  w-rongfully  detains  one's 
•-  %jic<j>j<Aj     '"'^fS'  ^liiWj  or  servant ;  in  which  case  the  owner  of  the  goods,  and  the 
»        .     husband,  parent,  or  master  may  lawfully  claim  and  retake  them,  wher- 
AV^x^Ai^vvcA     g^,^,^.  j,g  happens  to   find  them,  so  it  be  not  in  a  riotous  manner,  or 
'\lJjj,^J^  .    attended  with  a  breach  of  the  peace.'      Upon  this  ground  we  hn.ve  not 
the  slightest  hesitation  in  holding,  that,  under  and  in  virtue  of  the  Con- 
t  '^sip^.^'^       stitution,  the  owner  of  a  slave  is  clothed  with  entire  authority,  in  every 
J     -        -_.   State  in  the  Union,  to  seize  and  recapture  his  slave,  whenever  he  can 
'^^^^"^"^^^^^^"^   •  do  it  without  any  breach  of  the  peace  or  any  illegal  violence.     In  this 
sense,  and  to  this  extent  this  clause  of  the  constitution  may  properly  be 
.        said  to  execute  itself,  and  to  require  no  aid  from  leoislation.  State  or 
lixOurL  Cti'^  national, 
'x  •    '  "But  the  clause  of  the  Constitution  does  not  stop  here.   .   .   .  It  says: 

^^uXlt^    '  But  he  (the  slave)  shall  be  delivered  up  on  claim  of  the    party   to 
iji,^^       whom  such  service  or  labor  may  be  due.'     Now,  we  think  it  exceed- 
ingly difTicult,  if  not  impracticable,  to  read  this  language  and  not  to 
KW  (  ^'^    feefthat  it  contemplated  some  further  remedial  redress  than  that  which 
'     t-JhxtuNA  -  ^'g^^t  b^  administered  at  the  hands  of  the  owner  himself.      A  claim  is 
vV/^i,^Aii>iMM     ^^^ \^  made.     What  is  a  claim?      It  is,  in  a  just  juridical  sense,  a  d(> 
,      yCo-^        niand  of  some  matter  as  of  right  made  by  one  ijcrson  upon  another,  to 
-o^^o^vttA..    do  or  to  forbear  to  do  some  act  or  thing  as  a  matter  of  duty.  .   .   . 

"  Tt  is  plain,  then,  that  where  a  claim  is  made  by  the  owner,  out  of  pos- 
!v«JLi^A/-o-^  session,  for  the  delivery  of  a  slave,  it  must  be  made,  if  at  all,  against 
some  other  person  ;  and  inasmuch  as  the  right  is  a  right  of  property 
ca_pable  of  being  recognized  and  asserted  by  proceedings  before  a  court 
.iNAj-o  Vj\A3- of  justice,  between  parties  adverse  to  each  other,  it  constitutes,  in  the 
^;^XjJL  o^  strictest  sense,  a  controversy  between  the  parties,  and  a  case  '  arising 
ktLATv*.  under  the  Constitution '  of  the  United  States  ;  within  the  express  dele- 
^-^^Y  gation  of  judicial  power  given  by  that  instrument.     Congress,  then,  may 

QjlaArt^s.^         call  that  power  into  activity  for  the  very  purpose  of  giving  effect  to  that 


^JCoJ^ 


CHAP.  IV.]  PRIGG   V.    COMMONWEALTH    OF   PA.  479 

right ;  and  if  so,  then  it  may  proscribe  the  mode  and  extent  in  which 
it  siiall  be  applied,  and  liow,  and  under  what  circuuistanccs  the  proceed- 
ings shall  artbrd  a  complete  protection  and  oiiarautee  to  the  ri,<>lit. 

•'  Congress  has  taken  this  very  view  of  the  power  and  duty  of  the 
national  goyernment.  As  early  as  the  year  1791,  the  attention  of  Con- 
gress was  drawn  to  it  (as  we  shall  hereafter  more  full}'  see),  in  conse- 
quence of  some  practical  difficulties  arising  under  the  other  clause 
respecting  fugitives  from  justice  escaping  into  other  States.  The 
result  of  their  deliberations  was  the  passage  of  the  Act  of  the  12th  of 
Februar}',  1793,  c.  51  (7)."  [This  Act  provided  for  the  arrest  of  fugi- 
ti ves  from  service,  for  carrying  them  before  a  judge  or  magistrate,  and , 
upon  ijroof  to  his  satisfaction  of  tlie  master's  right  under  the  laws  of 
the  State  or  Territory  from  which  the  fugitive  came,  for  the  issuing  of  a 
certificate  which  should  warrant  the  removal  of  the  fugitive.  The  court 
go  on  to  hold  this  Act  valid,  to  declare  the  power  of  Congress  over  the  sub- 
ject to  be  exclusiye,  and  the  statute  of  Pennsylvania  unconstitutional.!^ 

1  "I  have  ahvays  thouglit  that  the  Constitution  addressed  itself  to  the  legislatures  of 
the  States  or  to  the  States  tliemselves.  It  says  that  those  persons  escaping  to  other 
States  '  shall  be  delivered  np,'  and  I  confess  I  have  always  been  of  the  opinion  that  it 
was  an  injunction  upon  the  States  themselves. 

"  When  it  is  said  that  a  person  escaping  into  another  State,  and  coining  within  the 
jurisdiction  of  tliat  State,  siiall  be  delivered  up,  it  seems  to  me  the  ini])urt  of  tiie  clause 
is.  that  the  State  itself,  in  obedience  to  tlic  Constitution,  shall  cause  liim  to  be  deliv"- 
ered  up.  That  is  my  judgment.  I  have  ahvavs  entertained  that  upinion,  and  I  enter- 
tain it  now.  But  when  tlie  subject,  some  years  ago,  was  before  tiie  Supreme  Court  of 
the  United  States,  the  majiiritv  of  tlie  iudges  held  that  the  power  to  cause  fugitives 
from  service  to  be  delivered  up  was  a  power  to  be  exercised  under  the  authority  of 
this  government.  I  do  not  know,  on  the  whole,  that  it  may  not  have  been  a  fortunate 
decision.  My  habit  is  to  respect  the  result  of  judicial  deliberations  and  the  solemnity  • 
of  judicial  decisions.  As  it  now  stands,  the  business  of  seeing  that  these  fugitives  are 
delivered  up  resides  in  the  power  of  Congress  and  the  national  judicature,  and  my 
friend  at  the  head  of  the  Judiciary  Committee  has  a  bill  on  the  subject  now  before  the 
Senate,  which,  with  some  amendments  to  it,  I  propose  to  support,  with  all  its  pro- 
visions, to  the  fullest  extent."  —  Daniel  Webster,  Speech  of  the  7th  of  March, 
18.50,  Works,  vi.  354. 

In  Ableman  v.  Booth.  21  IIow.  506,  526  (1859),  the  case  grew  out  of  resistance  to 
the  second  Federal  law  for  the  rendition  of  fugitive  slaves,  —  that  of  September  18, 
1850,  to  which  Mr.  Webster  alluded  in  the  passage  above  quoted.  Near  the  end  of 
the  opinion,  Taney,  C.  J.,  for  the  court,  said  :  "  Although  we  think  it  unnecessary  to 
discuss  these  cjuestions,  yet,  as  they  have  been  decided  by  the  State  court,  and  are  be- 
fore us  on  the  record,  and  we  are  not  willing  to  be  misunderstood,  it  is  proper  to  say 
that,  in  the  judgment  of  this  court,  the  Act  of  Congress  commonly  called  tlie  Fugitive 
Slave  Law  is.  in  all  of  its  pruvisiuns.  fully  authorized  by  tlie  Constitution  of  the  United 
States;  that  the  commissioner  had  lawful  authority  to  issue  tlie  warrant  and  coniniit 
the  party,  and  that  his  proceedings  were  regular  and  conformable  to  law." 

See  Groves  v.  Slaughter,  15  Pet.  449  (1841)  ;  Strader  et  al  v.  Graham,  10  How.  82 
(1850);  Kentucky  v.  Dennison,  24  How.  66  (1860).  —  Ed. 


I    Lcu\rtrr- 


rvcf4X"' 


^^ ^  SCOTT   V.    SAXDFORD,  [CHAP.  IV. 

A-ai.  /,Lc4^  4.^<X  AyunjsUd  ^ 

a.^a^i^4/  ^   lo^^^^HA      I^R^^D   SCOTT  ?;.   SANDFORD. 
^H  ttt^oX  (^/  (ax^         Supreme  Court  of  the  United  States.     1857. 

U/^^X/t'*^^  [Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
■^    '  Missouri.     Tlie  facts  are  stated  in  the  opinion  printed  below.     All  the 

judges  gave  opinions  ;  that  of  Mr.  Justice  Nelson  is  here  presented,  be- 
cause a  selection  must  be  made,  and  because  this  opinion  alone  limits 
</<^^i^  ^      itself  to  grounds  agreed  upon  b}-  a  majority  of  the  court  and  necessarj' 
A     J  to  the  disposition  of  the  case.]^ 

,ix\,j2AJAAiX.       ]sJelsox,  J.     I  shall  proceed  to  state  the  grounds  upon  which  I  have 
Ji  '/fvO .        arrived  at  the  conclusion,  that  the  judgment  of  the  court  below  should 
tfeiA^         be  affirmed.     The  suit  was  brought  in  the  court  below  by  the  plaintiff, 
for  the  purpose  of  asserting  his  freedom,  and  that  of  Harriet,  liis  wife, 
and  two  children. 

The  defendant  plead,  in  abatement  to  the  suit,  that  the  cause  of 
(Ifjli^i^JJir    action,  if  any,  accrued  to  the  plaintiff  out  of  the  jurisdiction  of_the 
court,  and  exclusively  within  thej'urisdiction  of  the  courts  of  the  State 
^'<^*^'  of  Missouri ;  for,  that  the  said  plaintiff  is  not  a  citizen  of  the  State  of 

{ft  ■  pMjtci^  Missouri,  as  alleged  in  the  declaration ,  because  he  is  a  negro  of  African 
^  oJImM"  descent;  his  ancestors  were  of  pure  African  blood,  and  were  brought 
■iMjJr    Vicdi   into  this  country  and  sold  as  negro  slaves. 

To   this   plea  the  plaintiff  demurred,~and  the  defendant  joined   in 
-    <^-^'VMA  demurrer.     The  court  below  sustained  the  demurrer,  holding  that  the 

.di  a<AiWU/»-  plea  was  insufficient  in  law  to  abate  the  suit. 
dCuAx  VCC£<M^^  "^^^  defendant  then  plead  over  in  bar  of  the  action  : 

1.  The  general  issue.     2.  That  the  plaintiff  was  a  negro  slave,  the 
'■  (pH' -'^'^   lawful  property  of  the  defendant.     And  3.  That  Harriet,  the  wife  of 
^  a.  CiMy^  gr^ifl  plaintiff,  and  the  two  children,  were  the  lawful  slaves  of  the  said 
f/ptb  'icc^    defendant.      Issue  was  taken  upon  tliese  pleas,  and  the  cause  went 
down  to  trial  before  the  court  and  jury,  and  an  agreed  state  of  facts 
^^^^^  was  presented,  upon  which  the  trial  proceeded,  and  resulted  in  a  ver- 

L(?cvc  .  diet  for  the  defendant,  under  the  instructions  of  the  court. 

<U^juu<rv\vx.  The  facts  agreed  upon  were  substantially  as  follows : 

^,      ^,  That  in  the  year  1834,  the  plaintiff,  Scott,  was  a  negro  slave  of  Dr. 

T^'^  wEmerson,  who  was  a  surgeon  in  the  army  of  the  United  States  ;  and  in 
-«^  '-k.^AA  -  y  that  year  he  took  the  nlaintiff  from  tlie  State  of  Missouri  to  llie  niilitnrv 
■f,,^,;^^^^  l^  post  at  Rock  Island,  in  the  State  of  Illinois,  and  held  him  tliere  as  a 
^A^rA^V^  slave  until  the  month  of  April  or  May.  1M36.  At  this  date.  Dr.  Emer- 
"^■^^"^^^  son  removed,  with  the  plaintiff,   from  the  Rock  Island    post   to   the 

X  /CLuA^xcvul  military  post  at  Fort  Snelling.  situnte  on  the  west  bank  of  the  IMissis- 
.,     A  At   h       sippi  River,  in  the  Territory  of  Upper   Louisiana,  and    north   of  tl^' 

U   ]_  ix-C/tx  1  It  was  originally  prepared,  by  direction  of  the  majority,  to  stand  as  the  opinion  of 

^  the  court.     See  note,  p.  494,  infra ;  also  Tyler's  "  Life  of  Taney,"  384.  —  Ed,- 


jy^ 


SCOTT   V.    SANDFORD.  481    otVU^. 

latitude  tliirU'-six  degrees  thirty  minutes,  and  north  of  the  State   of     r^         -j-^ 

Missouri.     That  he  held  the  ijlaintiff  in  shivery,  at  Fort  Sneinnu',  from 

the  last-mentioned  date  until  the  year  1838.  Wm.   dU^'^ 

That  in  tlie  j'ear  1835,  Harriet,  mentioned  in  the  declaration,  was  a    Ac^^^jULor-^ 
nearo  slave  of  Major  Taliaferro,  who  belonged  to  the   army  of  the 
United  States;  and  in  that  year  he  took  her  to  Fort  Snelling,  already^Y-C^^"  ''^ 
mentioned,  and  Icept  her  there  as  a  slave  until  the  j'eav  1836,  and  ^then     ^^  /tu^^ 
sold  and  delivered  her  to  Dr.  Emerson,  who  held  her  in  slavery,  at       ^    ,/\  (J 
Fort  Snelling,  until  the  year  1838.     That  in  the  year  183G,  the  jjlaintitf    <^^''U£a^- 
and  Harriet  were  married,  at  Fort  Snelling,  with  the  consent  of  tlieir  ^  oJHoa/^  t^ 
master.     The  two  children,  Eliza  and  Lizzie,  are  the  fruit  of  this  mar-     ^      . 
riage.     The  first  is  about^fourteen  years  of  age,  and  was  boi'n  on  board    ifM  'USa.  /H(^ 
the  steamboat  '^  Gipsey,"  north  of  the  State  of  Missouri,  and  upon  the     // 
Mississippi  River ;  the  other,  about  seven  years  of  age,  was  born  in    ^^  -tAXyCo 
the  State  of  Missouri,  at  the  military  ])ost  called  Jefferson  Bai'racks.        ^  /SJtaJbL  erf 

In    1838,   Dr.    Emerson    removed    the    plaintiff,   Harriet,  and    their 
daughter  Eliza,  from  Fort  Snelling  to  the   State  of  Missouri,  where   'CLAAiAM^ 
they  have  ever  since  resided.     And  that,  before  the  commencement  of  ajAaaax  /jMat 
this  suit,  they  were  sold  by  the  doctor  to  Sandford,  the  defendant,  who    ^      h       y  ^ 
has  claimed  and  held  them  as  slaves  ever  since.  »    /     </ 

The  agreed  case  also  states  that  the  plaintiff  brought  a  suit  for  his    J-*A.  "Oij  H^u 
freedom,  in  the  Circuit  Court  of  the  State  of  Missouri,  on  whicha  judg-  .  iJtfiA. 

ment  was  rendered  in  his  favor ;  but  that,  on  a  writ  of  error  from   the  ^ 

Supreme  Court  of  the  State,  the  judgment  of  the  court  below  was  re-   ^-<^a^\dJLA 
versed,  and  the  cause  remanded  to  the  circuit  for  a  new  trial.  "ijUAAAAAy^ 

On  closing  the  testimony   in  the  court  below,  the  counsel  for  the        -/    <^     > 
plaintiff  prayed  the  court  to  instruct  the  jury,  upon  the  agreed  state  of  ^^-^-MTi-^-ict^ 
facts,  that  they  ought  to  find  for  the  plaintiff ;  when  the  court  refused,  ^Vv<.ayiXt4^ 
and  instructed  them  that,  upon  the  facts,  the  law   was   with   the  de-  y^J^/X^  ^ 

AYith  respect  to  the  plea  in  abatement,  which  went  to  the  citizenship 
of  the  plaintiff,  and  his  competency  to  bring  a  suit  in  the  Federal  courts,   <^^^"-^-A  <x^  i^ 
the  common-law  rule  of  jjleading  is,  that  upon  a  judgment  against  the^^^^q  <\,j]Mi. 
plea  on  demurrer,  and  that  the  defendant  answer  over,  and  the  defend- 
ant submits  to  the  judgment,  and  ))leads  over  to  the  merits,  the  plea  in 


\c\.  Ay^\^ 


abatement  is  deemed  to  be  waived,  and  is  not  afterwards  to  1)e  regarded    \Xujlx. ^    ■^ 
as  a  part  of  the  record  in  deciding  upon  the  rights  of  the  parties.     There     /  j  ^ 

is  some  question,  however,  whether  this  rule  of  pleading  ujjplies  to  the    ^^/,, 
peculiar  system  and  jurisdiction  of  the  Federal  courts.     As,Jn_these'^6\jL  w<fw^ 
courts,  if  the  facts  appearing  on  the  record  show  that  the  Circuit  Court  6[.  ^ 

/i'^^-^^   had  no  jurisdiction,  its  judgment  will  be  reversed  in  the  appellate  court  v 

j^^       for  that  cause,  and  the  case  remanded  with  directions  to  be  dismissed.     -^/^^^  ^ 
^^       In  the  view  we  have  taken  of  the  case,  it  will  not  be  necessary  to    ,i/fiA'VuuiJ 
pass  upon  this  question,  and  we  shall  therefore  |)roceod  at  once  to  an    ""^TT.         ^ 
*^  examination  of  the  case  upon  its  merits.    The  question  upon  the  merits,  yUM'^''^^t 

u/uc^    in  general  terms,  is,  whether  or  not  the   removal  of  the   plaintiff,  who   ^  ,2^  .yiiU/ 
ij,      was  a  slave,  with  his  master,  from  the  State  of  Missouri  to  the  State  of 


-   \K^<K 

<J 


4' 


yv^^,^,v      ^g2  SCOTT  V.   SANDFORD.  [CHAP.  IV. 

»^    .  Illinois,  with  a  view  to  a  temporary  residence,  and  after  such  residence 

and  return  lo  the  slave  State,  such  residence  in  the  free  State  works  an 
,.^»^<  A/>-tf-v.  emancipation. 

ck.\Aj^  As  ap[)ears  from  an  agreed  statement  of  facts,  this  question  has  been 
before  the  hi<;liest  court  of  the  State  of  Missouri,  and  a  judu'uicnt 
rendered  lliat  this  residence  in  the  free  State  has  no  such  effect ;  but, 
on  the  contrar\',  that  his  orioinal  condition  continued  unchanged. 

The  court  below,  the  Circuit  Court  of  the  United  States  for  Missouri, 
in  which  this  suit  was  afterwards  brought,  followed  tlic  decision  of  the 
State  court,  and  rendered  a  like  nidgment  against  the  plaintiff. 

The  argument  against  tliese  decisions  is,  that  the  laws  of  Illinois, 

X.  Xm^  forbidding  slavery  withui  her  territory,  had  the  effect  to  set  the  slave 

^  free  while  residing  in  that  State,  and  to  impress  upon  him  the  condi- 

"^^^"^^^  tion    and    status   of  a  freeman  ;    and   that,   by    force   of  these   laws, 

J}^\XXS-      tijjg  status  and  condition  accompanied  him  on  his  return  to  the  slave 

A-i.^^vr.  [/towtfState,  and  of  consequence  he  could  not  be  there  held  as  a  slave. 

\  ^         This  question  has  been  examined  in  the    courts   of  several  of  the 

AAp^-^^V*^"  slaveholding  States,  and  different  opinions  expressed  and  conclusions 

«_^  i\         arrived  at.     We  shall  hereafter  refer  to  some  of  them,  and  to  the  prin- 

b        ciples  upon  which  they  are  founded.     Our  opinion  is,  that  the  question 

iX/^-^'^  '      is  one  which  belongs  to  each  State  to  decide  for  itself,  either  by  its 

legislature  or  courts  of  justice  ;    and  hence,   in   respect   to   the    case 

T-^iM-  \  '   before  us,  to  the  State  of  Missouri  —  a  question  exclusivel}-  of  Missouri 

y  (f    ,  2^      law,  and  which,  when  determined  b}'  that  State,  it  is  the  duty  of  the 

W^'*-^  0        Federal  courts  to  follow  it.     In  other  words,  except  in  cases  where  the 

AXOJX'^i'^-  power  is  restrained  by  the  Constitution  of  the  United  States,  the  law  of 

.(J         the  State  is  supreme  over  the  subject  of  slavery  within  its  jurisdiction. 

A/Wy '>0         As  a  practical  illustration  of  the  principle,  we  may  refer  to  the  legis- 

-i     (     '-       lation  of  the  free   States   in   abolishing   slavery,  and   prohibiting   its 

■    ^        ^^  introduction  into  their  territories.     Confessedly,  except  as  restrained 

^  "VIUa  by  the  Federal  Constitution,  they  exercised,  and  rightfully,  complete 

^^rr"         and  absolute  power  over  the  subject.     Upon  what  principle,  then,  can 

it  be  denied  to  the  State  of  Missouri?     The  power  flows   from   the 

tArvJ>KjJ[*K-  sovereign  character  of  the  States  of  this  Union  ;  sovereign,  not  merely 

as  resppcts  the  Federal  government  —  except  as  they  have  consented 

ifvuxA>^'     to  its  limitation  —  but  sovereign  as  respects  each  other.      Whether, 

therefore,  the   State  of  Missouri  will  recognize   or  give  effect  to  the 

laws  of  Illinois  within  her  territories  on   the  sulyect  of  slavery,  is  a 

question  for  her  to  determine.     Nor  is  there  any  constitutional  power 

in  this  government  that  can  rightfully  control  her. 

Every  State  or  nation  possesses  an  exclusive  sovereignty  and  juris- 
diction within  her  own  territory  ;  and,  her  laws  affect  and  bind  all 
property  and  persons  residing  within  it.  It  may  regulate  the  manner 
and  circumstances  under  which  property  is  held,  and  the  condition, 
capacity,  and  state,  of  all  persons  therein  ;  and,  also,  the  remedy  and 
modes  of  administering  justice.  And  it  is  equally  true,  that  no  State 
or  nation  can  affect  or  bind  property  out  of  its  territory,  or  persons  not 


'\kj3Xj!\K.o^    ir<~J^Ouu^y^^     ttvocA     VA^^^^  .-v^vB-^t     J^^/L^j-^^nX.^  <*/i/J^  'Jt-v- 

CHAP.  IV.]  SCOTT   2^.    SANDFOKD.  483    ^^^^■^-*^'^*-''^"^ 

residing  within  it.     No  State,  therefore,  can  enact  laws  to  operate  be-  •      , -__ 

yonil  its  own  dominions,  and,  if  it  attempts  to  do  so,  it  may  be  hnvfuUy  ^yH^-f^^^^^ 
refused  obedience.     Such  laws  can  have  no  inherent  authority  extra-    f-/  %iUx 

lis-      V) 


territoriall}'.     This  is  the  necessary  result  of  the  independence  of  dis- 
tinct and  separate  sovereignties. 


CU-iA/Cf  ^^ 


Now,  it  follows  from  these  principles,  that  whatever  force  or  effect    Jijut^<^ 


'fxJCuCtL(r\*^<^ 


the  laws  of  one  State  or  nation  may  have  in  the  territories  of  another. 
must  depend  solely  upon  the  laws  and  municii^al  reoiilations  of  the 
latter,  upon  its  own  Jurisprudence  and  polity,  and  upou  its  own  express 
or  tacit  consent.  ie*<x-^  tAjL- 

Judge  Story  observes,  in  his  Conflict  of  Laws  (p.  24),  ''that  a  State    -i^^^^iji 
\)M\y  prohil)it  tiie  operation  of  all  foreign  laws,  and  the  rights  growing     if    ^    }jL 
out  of  them,  within  its  territories."     "And  that  when  its  code  speaks    ^^ 
positively  on  the  subject,  it  must  be  obeyed  by  all  persons  who  are     O^-c-^  U--i\-^ 
within  reach  of  its  sovereignt}' ;   when  its  customary  unwritten  or  com-  ^^.j,.^^  CMUJi 
njon  law  speaks  directly  on  the  subject,  it  is  equally  to  be  obeyed." 

Nations,  from  convenience  and  comit}-,  and  fi-ora  mutual  interest,  and 
a  sort  of  moral  necessity  to  do  justice,  recognize  and  administer  the 
laws  of  other  countries.  But,  of  the  nature,  extent,  and  utilit\',  of 
them,  respecting  propert}-,  or  tlie  state  and  condition  of  persons  within 
her  territories,  each  nation  judges  for  itself;  and  is  never  bound,  even 
upon  the  ground  of  comity,  to  recognize  them,  if  prejudicial  to  her 
own  interests.  The  recognition  is  purely  from  comity,  and  not  from 
any  absolute  or  paramount  obligation. 

Judge  Stor}'  again  observes  (398),  "that  the  true  foundation  and 
extent  of  the  obligation  of  the  laws  of  one  nation  within  another  is  the 
voluntary  consent  of  the  latter,  and  is  inadmissible  when  the}'  are 
contrary  to  its  known  interests."  And  he  adds,  "in  the  silence  of  any 
positive  rule  affirming  or  denying  or  restraining  the  operation  of  the 
foreign  laws,  courts  of  justice  presume  the  tacit  adoption  of  them  b\' 
their  own  government,  unless  they  are  repugnant  to  its  policy  or  pre- 
judicial to  its  interests."  See  also  2  Kent  Com.,  p.  457;  13  Peters, 
519,  589. 

These  principles  fully  establish,  that  it  belongs  to  the  sovereign  State 
of  "Missouri  to  determine  by  her  laws  the  question  of  slavery  within 
her  jurisdiction,  subit-ct  only  to  such  limitations  as  may  be  found  in  the 
Federal  Constitution  ;  and,  further,  that  the  laws  of  other  States  of 
the  Confederacy,  whether  enacted  bv  their  legislatures  or  exiwunded 
by  their  courts,  can  have  no  operation  within  her  territory,  or  affect 
riglits  growing  out  of  her  own  laws  on  the  subject.  This  is  the  neces- 
sary result  of  the  independent  and  sovereign  character  of  the  State. 
The  principle  is  not  peculiar  to  the  State  of  Missouri,  but  is  equally 
ap[)licable  to  each  State  belonging  to  the  Confederacy.  The  laws  of 
each  have  no  extra-territorial  operation  within  the  jurisdiction  of  an- 
other, except  such  as  may  be  voluntarily  conceded  by  her  laws  or  courts 
of  justice.  To  the  extent  of  such  concession  upon  tiic  rule  of  comity 
of  nations,  the  foreign  law  may  operate,  as  it  then  becomes  a  part  of 


484  SCOTT   V.    SANDFORD.  [CHAP.  IV. 

the  municipal  law  of  the  State.  "When  determined  that  the  foreign 
law  shall  have  effect,  the  municipal  law  of  the  State  retires,  and  gives 
place  to  the  foreign  law. 

In  view  of  these  principles,  let  us  examine  a  little  more  elosel}"  the 
doctrine  of  tliose  who  maintain  that  the  law  of  Missouri  is  not  to 
govern  tlie  status  and  condition  of  the  plaiutilf.  They  insist  that  the 
removal  and  temporary  residence  with  his  master  in  Illinois,  where 
slaver}'  is  inhibited,  had  the  effect  to  set  him  free,  and  that  the  same 
effect  is  to  be  given  to  the  law  of  Illinois,  within  the  State  of  Missouri, 
after  his  return.  Wliv  was  he  set  free  in  Illinois?  Because  the  law 
of  Missouri,  under  wiiich  he  was  held  as  a  slave,  h ad  no  oi^cration  by 
its  own  force  extra-territorially  ;  and  the  State  of  Illinois  refused  to 
recognize  its  effect  within  her  limits,  upon  principles  of  comity,  as  a 
state  of  slavery  was  inconsistent  with  her  laws,  and  contrary  to  lier 
policy.  But,  how  is  the  case  different  on  the  return  of  the  ]jlaintiff 
to  the  State  of  Missouri?  Is  she  bound  to  recognize  and  enforce  the 
law  of  Illinois?  For,  unless  she  is,  the  status  and  condition  of  the  slave 
upon  his  return  remains  the  same  as  originall_y  existed.  Has  the  law 
of  Illinois  any  greater  force  within  the  jniisdiction  of  Missouri,  than 
the  laws  of  the  latter  within  that  of  the  former?  Certainh-  not.  They 
stand  upon  an  equal  footing.  Neither  has  any  force  extra-territorially, 
except  what  may  be  voluntarily  conceded  to  them . 

It  has  been  supposed,  by  the  counsel  for  the  plaintiff,  that  a  rule 
laid  down  b^'  Huberus  had  some  bearing  upon  this  question.  Huberus 
observes  that  "  personal  qualities,  impressed  by  the  laws  of  any  place, 
surround  and  accompany  the  person  wherever  he  goes,  with  this  effect : 
that  in  ever}'  place  he  enjoys  and  is  subject  to  the  same  law  which  other 
pei'sons  of  his  class  elsewhere  enjoy  or  are  subject  to."  De  Confl. 
Leg.,  lib.  1,  tit.  3,  sec.  12  ;  4  Dallas,  375  n.  ;  1  Storj'  Con.  Laws,  pp. 
59,  60. 

The  application  sought  to  be  given  to  the  rule  yvas  this  :  that  as  Dred 
Scott  was  free  while  residing  in  the  State  of  Illinois,  by  the  laws  of 
that  State,  on  bis  return  to  the  State  of  Missouri  he  carried  with  him 
the  personal  qualities  of  freedom,  and  that  the  same  effect  must  be 
given  to  his  status  there  as  in  the  former  State.  But  the  difficulty  in 
the  case  is  in  the  total  misapplication  of  the  rule. 

These  personal  qualities,  to  which  Huberus  refers,  are  those  im- 
pressed upon  the  individual  by  the  law  of  the  domicil ;  it  is  this  that 
the  author  claims  should  be  permitted  to  accompany  tlie  person  into 
whatever  country  he  might  go,  and  should  supersede  the  law  of  the 
place  where  he  had  taken  up  a  tempoi'ary  residence. 

Now,  as  the  domicil  of  Scott  was  in  the  State  of  ]\Iissouri,  where  be 
was  a  slave,  and  from  whence  he  was  taken  by  his  master  into  Illinois 
for  a  temporary  residence,  according  to  the  doctrine  of  Huberus,  the 
law  of  his  domicil  would  have  accompanied  him,  and  during  his  resi- 
dence there  he  would  remain  in  the  same  condition  as  in  the  State  of 
Missouri.     In  order  to  have  given  effect  to  the  rule,  as  claimed  in  the 


I 


CHAP.  IV.]  SCOTT   V.   SANDFORD,  485 

argu iiient,  it  should  have  been  first  shown  that  a  domicil  had  been 
ac(|uifed  in  the  free  State,  which  eanuot  be  pretended  upon  the  aurced 
facts  in  the  case.  But  the  true  answer  to  llie  doctrine  of  Iluberus  is, 
that  the  rule,  in  any  aspect  in  which  it  may  be  viewed,  has  no  bear! no- 
u pon  either  side  of  the  question  before  us,  even  if  conceded  to  th e 
extent  '^laid  down  by  the  author ;  for  he  admits  that  foreign  govern- 
ments give  effect  to  these  laws  of  the  domicil  no  further  than  they  are 
consistent  with  their  own  laws,  and  not  prejudicial  to  their  own  sub- 
jects ;  in  other  words,  their  force  and  effect  depend  upon  the  law  of 
comity  of  the  foreign  government.  We  should  add,  also,  that  this 
general  rule  of  Huberus,  referred  to,  has  not  been  admitted  in  the 
practice  of  nations,  nor  is  it  sanctioned  b^'  the  most  approved  jurists 
of  international  law.  Story  Con,,  sees.  91,  96,  103,  104;  2  Kent 
Com.,  p.  457,  458  ;  1  Burge  Con.  Laws,  pp.  12,  127. 

We  come  now  to  the  decision  of  this  court  in  the  case  of  Strader  et 
al.  v.  Graham,  10  How.  p.  2.  The  case  came  up  from  the  Court  of 
Appeals,  in  the  State  of  Kentuckj'.  The  question  in  the  case  was, 
whether  certain  slaves  of  Graham,  a  resident  of  Kentucky,  who'had 
been  employed  temporarily  at  several  places  in  the  State  of  Ohio,  with 
their  master's  consent,  and  had  returned  to  Kentuckj'  into  his  service, 
had  thereby  become  entitled  to  their  freedom.  The  Court  of  Appeals 
held  that  they  had  not.  The  case  was  brought  to  this  court  under  the 
twentj'-fifth  section  of  the  Judiciary  Act.  This  court  held  that  it  had 
no  jurisdiction,  for  the  reason,  the  question  was  one  that  belonged 
exclusively  to  the  State  of  Kentucky.  The  Chief  Justice,  in  deliver- 
ing the  opinion  of  the  court,  observed  that  "every  State  has  an 
undoubted  right  to  determine  the  status  or  domestic  and  social  con- 
dition of  the  persons  domiciled  within  its  territory,  except  in  so  far 
as  the  powers  of  the  States  in  this  respect  are  restrained,  or  duties  and 
obligations  imposed  upon  them,  by  the  Constitution  of  the  United 
States.  There  is  nothing  in  the  Constitution  of  the  United  States,  he 
observes,  that  can  in  any  degree  control  the  law  of  Kentucky  upon 
this  subject.  And  the  condition  of  the  negroes,  therefore,  as  to  free- 
dom or  slavery,  after  their  return,  depended  altogether  upon  the  laws 
of  that  State,  and  could  not  be  influenced  by  the  laws  of  Ohio.  It  was 
exclusively  in  the  power  of  Kentucky  to  determine,  for  herself,  whether 
their  employment  in  another  State  should  or  should  not  make  them  free 
on  their  return." 

It  has  been  supposed,  in  the  argument  on  the  ]xart  of  the  plaintiff, 
that  the  eighth  section  of  the  Act  of  Congress  passed  March  6,  1820 
(3  St.  at  Large,  p.  544),  which  prohibited  slavery  north  of  thirty-six 
degrees  thirty  minutes,  within  which  tlie  plaintiff  and  his  wife  tem|)o- 
rUrily  resided  at  Fort  Snel  1  i n g,  possessed  some  superior  virtue  and  effect, 
extra- territorially^  and  within  the  State  of  Missouri,  beyond  that  of 
the  laws  of  Illinois,  or  those  of  Ohio  in  the  case  of  Strader  et  al.  v. 
Graham.  A  similar  ground  was  taken  and  urged  upon  the  court  in  the 
case  just  mentioned,  under  the  ordinance  of  1787,  which  was  enacted 


486  SCOTT  V.    SANDFORD.  [CHAP.  IV. 

during  the  time  of  tlie  Confederation,  and  re-enacted  by  Congress  after 
the  adoption  of  the  Constitution,  with  some  amendments  adapting  it  to 
tlie  new  government.     1  St.  at  Large,  p.  50. 

lu  answer  to  this  ground,  the  Chief  Justice,  in  delivering  the  opinion 
of  the  court,  observed  :  "  The  argument  assumes  that  tlie  six  articles 
which  that  ordinance  decUxres  to  be  perpetual,  are  still  in  force  in  the 
States  since  formed  within  the  Territor3',  and  admitted  into  the  Union. 
If  this  proposition  could  be  maintained,  it  would  not  alter  the  question  ; 
for  the  regulations  of  Congress,  under  the  old  Confederation  or  the 
l)resent  Constitution,  for  the  government  of  a  particular  Territor}', 
could  have  no  force  beyond  its  limits.  It  certainly  could  not  restrict 
the  power  of  the  States,  within  their  respective  territories,  nor  in  an}' 
manner  interfere  with  their  laws  and  institutions,  nor  give  this  court 
control  over  them. 

"The  ordinance  in  question,"  he  observes,  *'if  still  in  force,  could 
have  no  more  operation  than  the  laws  of  Ohio  in  the  State  of  Ken- 
tucky, and  could  not  influence  the  decision  upon  the  rights  of  the 
master  or  the  slaves  in  that  State," 

This  view,  thus  authoritatively  declared,  furnishes  a  conclusive  answer 
to  the  distinction  attempted  to  be  set  up  between  the  extra-territorial 
effect  of  a  State  law  and  the  Act  of  Congress  in  question. 

It  must  be  admitted  that  Congress  possesses  no  power  to  regulate  or 
abolish  slavery  within  the  States  ;  and  that,  if  this  Act  had  attempted 
any  such  legislation,  it  would  have  been  a  nullity.  And  yet  the  argu- 
ment here,  if  there  be  any  force  in  it,  leads  to  the  result,  that  effect 
may  be  given  to  such  legislation  ;  for  it  is  only  by  giving;  the  Act  of 
Congress  operation  within  the  State  of  Missouri,  that  it  can  have  any 
effect  upon  the  question  between  the  parties.  Having  no  such  eft'ect 
directly,  it  will  be  difficult  to  maintain,  upon  any  consistent  reasoning, 
that  it  can  be  made  to  operate  indirectly  upon  the  subject. 

The  argument,  we  think,  in  any  aspect  in  which  it  may  be  viewed, 
is  utterly  destitute  of  support  upon  any  principles  of  constitutional 
law,  as,  according  to  that,  Congress  has  no  power  whatever  over  the 
subject  of  slavery  within  the  State ;  and  is  also  subversive  of  the 
established  doctrine  of  international  jurisprudence,  as,  according  to 
that,  it  is  an  axiom  that  the  laws  of  one  government  have  no  force 
within  the  limits  of  another,  or  extra- territorially,  except  from  the, 
consent  of  the  latter. 

It  is  perhaps  not  unfit  to  notice,  in  this  connection,  that  many  of  the 
most  eminent  statesmen  and  jurists  of  the  country  entertain  the  opinion 
that  this  provision  of  the  Act  of  Congress,  even  within  the  territory 
to  which  it  relates,  was  not  authorized  by  any  power  under  the  Consti- 
tution. The  doctrine  here  contended  for,  not  only  upholds  its  validity 
in  the  territory,  but  claims  for  it  effect  beyond  and  within  the  limits  of 
a  sovereign  State  —  an  effect,  as  insisted,  that  displaces  the  laws  of  the 
State,  and  substitutes  its  own  provisions  in  their  place. 

The  consequences  of  any  such  construction  are  apparent.     If  Con- 


I 


CHAP.  IV.]  SCOTT   V.    SANDFORD.  487 

gress  possesses  the  power,  under  the  Constitution,  to  abolish  slavery 
in  a  Territory,  it  must  necessarily  possess  the  like  power  to  establish 
iL  It  cannot  be  a  one-sided  power,  as  may  suit  the  couyenience  or 
particular  views  of  the  advocates.  It  is  a  power,  if  it  exists  at  all, 
over  the  whole  subject ;  and  then,  upon  the  process  of  reasoning  which 
seeks  to  extend  its  influence  beyond  the  Territory,  and  within  the 
limits  of  a  State,  if  Congress  should  establish,  instead  of  abolish, 
slavery,  we  do  not  see  but  that,  if  a  slave  should  be  removed  from  the 
Territor}-  into  a  free  State,  his  status  would  accompany  him,  and  con- 
tinue, notwithstanding  its  laws  against  slayer3'.  The  laws  of  the  free 
State,  according  to  the  argument,  would  be  displaced,  and  the  Act  of 
Congress,  in  its  effect,  be  substituted  in  their  place.  We  do  not  see 
how  this  conclusion  could  be  avoided,  if  the  construction  against  which 
we  are  contending  should  prevail.  We  are  satisfied,  however,  it  is 
unsound,  and  that  the  true  answer  to  it  is,  that  even  conceding,  for  the 
purposes  of  the  argument,  that  this  provision  of  the  Act  of  Congress  is 
VAlid  within  the  Territory  for  which  it  was  enacted,  it  can  have  no 
Q[)eratiou  or  effect  beyond  its  limits,  or  within  the  jurisdiction  of  a 
State.  It  can  neither  displace  its  laws,  nor  change  the  status  or 
condition  of  its  inhabitants. 

Our  conclusion,  therefore,  is,  upon  this  branch  of  the  case,  that  the 
question  involved  is  one  depending  solely  upon  the  law  of  Missouri, 
and  that  the  Federal  court  sitting  in  the  State,  and  trying  the  case 
before  us,  was  bound  to  follow  it. 


The  remaining  question  for  consideration  is.  What  is  the  law  of  the 
S^ate  of  Missouri  on  this  subject?  And  it  would  be  a  sufficient  answer 
to  refer  to  the  judgment  of  the  highest  court  of  the  State  in  the  very 
case,  were  it  not  due  to  that  tribunal  to  state  somewhat  at  large  the 
course  of  decision  and  the  principles  involved,  on  account  of  some 
diversity  of  opinion  in  the  cases.  As  we  have  already  stated,  this 
case  was  originally  brought  in  the  Circuit  Court  of  the  State,  which 
resulted  in  a  judgment  for  the  plaintiff.  The  case  was  carried  up  to 
the  Supreme  Court  for  revision.  That  court  reversed  the  judgment 
below,  and  remanded  the  cause  to  the  circuit,  for  a  new  trial.  In  that 
state  of  the  proceeding,  a  new  suit  was  brouglit  by  the  plaintiff  in  the 
Circuit  Court  of  the  United  States,  and  tried  upon  the  issues  and 
agreed  case  before  us.  and  a  verdict  and  judgment  for  the  defendant, 
that  court  following  the  decision  of  the  Supreme  Court  of  the  State. 
The  judgment  of  the  Supreme  Court  is  reported  in  the  15  Misso.  R.,  p. 
576.     The  court  placed  the  decision  upon  the  temporary  residence  of 


the  master  with  the  slaves  in  the   .State  and  Territory  to  which  tliey 


removed,  and  tlieir  return  to  flic  slave  State  :  and   upon  the  principles 


of  international  law,  that  foreign  laws  have  no  extra-territorial  force, 
except  such  as  the  State  within  which  they  arc  sought  to  be  enforced 


may  see  fit  to  extend  to  them,  ui)on  the  doctrine  of  comity  of  nations. 
This  is  the  sul)stance  of  the  grounds  of  tlie  decision. 
The  same  question  has  been  twice  before  that  court  since,  and  the 


488  SCOTT  V.   SANDFORD.  [CILVP.  IV. 

same  judgment  given.  15  Misso.  R.  505;  17  lb.  434.  It  must  be 
admitted,  therefore,  as  the  settled  law  of  the  State,  and  according  to 
the  decision  in  tlie  case  of  JStrader  et  al.  v.  Graham^  is  conclusive  of 
the  case  in  this  court. 

It  is  said,  however,  tliat  the  previous  cases  and  course  of  decision 
in  the  State  of  Missouri  on  this  subject  were  different,  and  that  the 
courts  hud  held  the  slave  to  be  free  on  his  return  from  a  temporary 
residence  in  the  free  State.  We  do  not  see,  were  this  to  be  admitted, 
that  the  circumstance  would  show  that  the  settled  course  of  decision, 
at  the  time  this  case  was  tried  in  the  court  below,  was  not  to  be  con- 
sidered the  law  of  the  State.  Certainly,  it  must  be,  unless  the  first 
decision  of  a  principle  of  law  by  a  State  court  is  to  be  permanent  and 
irrevocable.  The  idea  seems  to  be,  that  the  courts  of  a  State  are  not 
to  change  their  opinions,  or,  if  they  do,  the  first  decision  is  to  be 
regarded  by  this  court  as  the  law  of  the  State.  It  is  certain,  if  this  be 
so,  in  the  case  before  us,  it  is  an  exception  to  the  rule  governing  this 
court  in  all  other  cases.  But  what  court  has  not  changed  its  opinions  ? 
What  judge  has  not  changed  his? 

Waiving,  however,  this  view,  and  turning  to  the  decisions  of  the 
courts  of  Missouri,  it  will  be  found  that  there  is  no  discrepancy  be- 
tween the  earlier  and  the  present  cases  upon  this  subject.  There  are 
some  eight  of  them  reported  previous  to  the  decision  in  the  case  be- 
fore us,  which  was  decided  in  1852.  The  last  of  the  earlier  cases  was 
decided  in  1836.  In  each  one  of  these,  with  two  exceptions,  the  master 
or  mistress  removed  into  the  free  State  with  the  slave,  with  a  view  to 
a  permanent  residence  —  in  other  words,  to  make  that  his  or  her  domicil. 
And  in  several  of  the  cases,  this  removal  and  permanent  residence  were 
relied  on,  as  the  ground  of  the  decision  in  favor  of  the  plaintiff.  All 
these  cases,  therefore,  are  not  necessaril}'  in  conflict  with  the  decision 
in  the  case  before  us,  but  consistent  with  it.  In  one  of  the  two  ex- 
cepted cases,  the  master  had  hired  the  slave  in  the  State  of  Illinois 
from  1817  to  1825.  In  the  other,  the  master  was  an  officer  in  the 
army,  and  removed  with  his  slave  to  the  military  post  of  Fort  Snelling, 
and  at  Prairie  du  Chien,  in  Michigan,  temporarih',  while  acting  under 
the  orders  of  his  government.  It  is  conceded  the  decision  in  this  case 
was  departed  from  in  the  case  before  us,  and  in  those  that  have  fol- 
lowed it.  But  it  is  to  be  observed  that  these  subsequent  cases  are  in 
conformity  with  those  in  all  the  slave  States  bordering  on  the  free  — 
in  Kentucky,  2  Marsh.  476;  5  B.  Munroe,  176;  9  lb.  565;  in 
Virginia,  1  Rand.  15;  1  Leigh,  172;  10  Grattan,  495 ;  in  Mar}-- 
land,  4  Harris  and  McHenry,  295,  322,  325.  In  conformity,  also, 
with  the  law  of  England  on  this  subject,  Ex  parte  Grace,  2  Hagg. 
Adm.  R.  94,  and  with  the  opinions  of  the  most  eminent  jurists  of  the 
country.  Story's  Confl.  396  a;  2  Kent  Com.  258  n. ;  18  Pick.  193, 
Chief  Justice  Shaw.  See  Corresp.  between  Lord  Stowell  and  Judge 
Story,  1  vol.  Life  of  Stor}',  p.  552,  558. 

Lord  Stowell,  in  communicating  his  opinion  in  the  case  of  the  slave 


CHAP.  IV.]  SCOTT   V.    SANDFOKD.  489 

Grace  to  Judge  Story,  states,  in  his  letter,  what  the  question  was  be- 
fore him,  namely  :  "  Wliether  tiie  emancipation  of  a  sUive  brought  to 
England  insured  a  complete  emancipation  to  him  on  his  return  to  iiis 
own  country,  or  whether  it  only  operated  as  a  suspension  of  slavery  in 
England,  and  his  original  character  devolved  on  him  again  upon  his 
return."  He  observed,  "  the  question  bad  never  been  examined  since 
an  end  was  put  to  slavery  fift}'  A'ears  ago,"  having  reference  to  the 
decision  of  Lord  Mansfield  in  the  case  of  Somersett ;  but  the  practice, 
he  observed,  "  has  regularly  been,  that  on  his  return  to  his  own  countr}', 
the  slave  resumed  his  original  character  of  slave."  And  so  Lord 
Stowell  held  in  the  case. 

Judge  Storj',  in  his  letter  in  repl}',  observes:  "I  have  read  with 
great  attention  your  judgment  in  the  slave  case,  &c.  Upon  the  fullest 
consideration  which  I  have  been  able  to  give  the  subject,  1  entirely  con- 
cur in  your  views.  If  I  had  been  called  upon  to  pronounce  a  judgment 
in  a  like  case,  I  should  have  certainly  arrived  at  the  same  result." 
Again  he  observes:  "In  my  native  State  (Massachusetts),  the  state 
of  slavery  is  not  recognized  as  legal;  and  yet,  if  a  slave  should  come 
hither,  and  afterwards  return  to  his  own  home,  we  should  certainly 
think  that  the  local  law  attached  upon  him,  and  that  his  servile  char- 
acter would  be  redintegrated." 

"We  ma}^  remark,  in  this  connection,  that  the  case  before  the  Mar3'- 
land  court,  alread}'  referred  to,  and  which  was  decided  in  1799,  pre- 
sented the  same  question  as  that  before  Lord  Stowell,  and  received  a 
similar  decision.  This  was  nearly  thirty  years  before  the  decision  in 
that  case,  which  was  in  1828.  The  Court  of  Appeals  observed,  in  de- 
ciding the  Maryland  case,  that  "  however  the  laws  of  Great  Britain  in 
such  instances,  operating  upon  such  persons  there,  might  interfere  so 
as  to  prevent  the  exercise  of  certain  acts  by  the  masters,  not  permitted, 
as  in  the  case  of  Somersett,  yet,  upon  the  bringing  Ann  Joice  into 
this  State  (then  the  province  of  Maryland),  the  relation  of  master 
and  slave  continued  in  its  extent,  as  authorized  by  the  laws  of  this 
State."  And  Luther  Martin,  one  of  the  counsel  in  that  case,  stated, 
on  the  argument,  that  the  question  had  been  previously  decided  the 
same  wa}'  in  the  case  of  slaves  returning  from  a  residence  in  Penns}'!- 
vania,  where  they  had  become  free  under  her  laws. 

The  State  of  Louisiana,  whose  courts  had  gone  further  in  holding  the 
slave  free  on  his  return  from  a  residence  in  a  free  State  than  the  courts 
of  her  sister  States,  has  settled  the  law,  by  an  Act  of  her  Legislature, 
in  conformity  with  the  law  of  the  court  of  Missouri  in  the  case  before 
us.     Sess.  Law,  1846. 

The  case  before  Lord  Stowell  presented  much  stronger  features  for 
giving  effect  to  the  law  of  England  in  the  case  of  the  slave  Grace  than 
exists  in  the  cases  that  have  arisen  in  this  country',  for  in  that  case  the 
slave  returned  to  a  colony  of  England,  over  which  the  imperial  govern- 
ment exercised  supreme  authority.  Yet,  on  the  return  of  the  slave  to 
the  colony,  from  a  temporary  residence  in  England,  he  held  that  the 


490  SCOTT   V.    SANDFORD.  [CHAP.  IV. 

original  condilion  of  the  slave  attached.  The  question  presented  in 
cases  arising  here  is  as  to  the  effect  and  operation  to  be  given  to  the 
laws  of  a  foreign  State,  on  the  return  of  the  slave  within  an  independent 
sovereignty. 

Upon  tlie  whole,  it  must  be  admitted  that  the  current  of  authority*, 
both  in  England  and  in  this  country,  is  in  accordance  with  the  law  as 
declared  b\'  the  courts  of  Missouri  in  the  case  before  us,  and  we  think 
the  court  below  was  not  only  right,  but  bound  to  follow  it. 

Some  question  has  been  made  as  to  the  character  of  the  residence  in 
this  case  in  the  free  State.  But  we  regard  the  facts  as  set  forth  in  the 
agreed  case  as  decisive.  The  removal  of  Dr.  Emerson  from  Missouri 
to  the  militarv  posts  was  in  the  discharge  of  his  duties  as  surgeon  in 
the  army,  and  under  the  orders  of  his  government.  He  was  liable  at 
an}-  moment  to  be  recalled,  as  he  was  in  1838,  and  ordered  to  another 
post.  The  same  is  also  true  as  it  respects  Major  Taliaferro.  In  such 
a^case,  the  officer  goes  to  his  post  for  a  temporary  pur|)ose,  to  remain 
there  for  an  uncertain  time,  and  not  for  the  purpose  of  fixing;  his  per- 
manent abode.  The  question  we  think  too  plain  to  require  argument. 
The  case  of  the  Attorney- General  v.  Napier^  6  Welsh,  Hurlst.  and 
Gordon  Exch.  Rep.  217,  illustrates  and  applies  the  principle  in  the 
case  of  an  officer  of  the  English  arm\\ 

^^^  Cr^  <u A  question  has  been  alluded  to,  on  the  argument,  namely  :  the  right 

.  of  the  master  with  his  slave  of  transit  into  or  through  a  free  State,  on 

uuA-^-t-v\^  ]j(^is[Qess  or  commercial  pursuits,  or  in  the  exercise  of  a  Federal  right, 
tw  )pryX^^~  or  the  discharge  of  a  Federal  duty,  being  a  citizen  of  the  United  States, 
which  is  not  before  us.  Tliis  Question  depends  \\\)0\\  different  considera- 
tions and  principles  from  the  one  in  hand,  and  turns  upon  the  rights 
and  privileges  secured  to  a  common  citizen  of  the  republic  under  the 
Constitution  of  the  United  States.  When  that  question  arises,  we  shall 
be  prepared  to  decide  it. 

Our  conclusion  is,  that  the  judgment  of  the  court  below  should  be 
affirmed. 


[What  is  reported  as  the  ''Opinion  of  the  Court,"  in  this  case  was  in 
fact  only  the  Opinion  of  the  Chief  Justice  announcing  the  Judgment  of 
the  Court.^  It  proceeds  upon  the  following  grounds  :  1.  The  plea  in 
3eA  -'VVA/VA.  abatement  is  before  the  court  and  raises  the  question  whetiier  a  negro 
whose  ancestors  were  brougl^t  to  this  country  and  sold  .ns  slaves  "  rnn 
become  a  member  of  the  political  community  formed  and  brought  into 
existence  by  the  Constitution  of  the  United  States  and  so  entitled  to  sue 
in  a  court  of  the  United  States,  as  being^a  citizen  of  one  of  the  States." 


Such  |)ersons,  although  free,  cannot  become  citizens,  within  the  meaning 
of  the  Federal  Constitution,  by  the  action  of  any  State,  or  even  through 
naturalization  by  Congress  —  Dred  Scott  was  not  a  citizen.  Tlie  Cir- 
cult  Court  had  therefore  no  jurisdiction,  and  the  judgment  on  the  plea 

.  iv^jAM,         in  abatement  was  erroneous.     2.  The  record  discloses  also  that  Scott 

^  See  infra,  pp.  491  u.  and  493  n.  —  Ed. 

k.   • 


CHAP.  IV.]  SCOTT   V.   SANDFOED.  491 

is  not  merely  a  free  negro  of  the  kind  above  named,  but  a  slave,  ip)(^l/i/f/)   i>>tr\M- 
Becaiise_the  eighth  section  of  the  Act  for  the  admission  of  Missoun  as  '        ' 
a  State,  March  6,  1820  (3  Stat,  at  Large,  545),  jjurporting  the  \)\:o\\\\<\-~fiAMVVU/LiC 
tion  of  slavery  in  a  Territory  of  the  United  States  was  unconstitutiumil  />^  XA^-VU 
and  did  not  make  Scott  or  the  members  of  his  family  free  at  Fort  Snel-        n^atihctX 
ling,     (b)  Nor  is  he  free  by  reason  of  living  in  Illinois,  because  upon       e 
his  return  to  Missouri  his  status  there  was  fixed,  by  the  law  of  Missouri, 
as  being  that  of  a  slave.    "Upon  the  whole,  therefore,  it  is  the  judg- 
ment of  this  court,  that  it  appears  by  the  record  before  us  that  the 
pi aintiff  in  error  is  not  a  citizen  of  Missouri,  in  the  sense  in  which  that 
word  is  used  in  the  Constitution  ;  and  that  the  Circuit  Court  of  the 
United  States,  for  that  reason,  had   no  jurisdiction  in  the   case,  and 
could  give  no  judgment  in  it.     Its  judgment  for  the  defendant  must, 
consequently,  be  reversed^  and  a  mandate  issued,  directing  the  suit  to 
be  dismissed  for  want  of  jurisdiction." 

AVayxe,  J.  (p.  454)"  in  a  brief  statement  agreed  entirely  in  this  opinion. 

Daniel,  J.,  also  supported  all  its  positions.  But  after  disposing  of 
the  plea  in  abatement  he  made  the  following  observations  —  "  Ac- 
cording to  the  view  taken  of  the  law,  as  applicable  to  the  demurrer  to 
the  plea  in  abatement  in  this  cause,  the  questions  subsequently  raised 
upon  the  several  pleas  in  bar  might  be  passed  by,  as  requiring  neither 
a  particular  examination,  nor  an  adjudication  directly  upon  them.  But 
as  these  questions  are  intrinsically  of  primary  interest  and  magnitude, 
and  have  been  elaborately  discussed  in  argument,  and  as  with  respect 
to  them  the  opinions  of  a  majority  of  the  court,  including  ni}-  own,  are 
perfectl}-  coincident,  to  me  it  seems  proper  that  they  should  here  be 
fully  considered,  and,  so  far  as  it  is  practicable  for  this  court  to  accom- 
plish such  an  end,  finally  put  to  rest." 

Gkiek,  J.  (p.  469),  briefly-  concurred  with  Nelson,  J.,  ''on  the  ques- 
tions discussed  by  him."  He  also  concurred  with  the  opinion  delivered 
by  the  Chief  Justice,  ''  that  the  Act  of  Congress  of  Gth  of  March,  1820. 
is  unconstitutional  and  void."  The  form  of  the  judgment  he  regarded 
as  of  little  importance  "  as  the  decision  of  the  pleas  in  bar  shows  that 
the  plaintiff  is  a  slave  ;  "  and  so  '■'■  whether  the  judgment  be  affirmed, 
or  dismissed  for  want  of  jurisdiction,  it  is  justified  by  the  decision  of 
the  court  and  is  the  same  in  effect  between  the  parties  to  the  suit."  He 
said  nothing  of  the  ])lea  in  abatement. 

Campbell,  J.  (p.  493),  concurred  "  in  the  judgment  pronounced  by 
the  Chief  Justice."  He  passed  over  the  plea  in  abatement,  expressly 
declining  to  consider  it,^  and  held  that  neither  the  law  of  Illinois  nor 

1  See  liis  own  statement  in  20  Wall.  p.  xi.,  that  "the  plea  in  abatement  and  the 
questions  arising  upon  it,  in  the  opinion  of  a  majority  of  the  court,  were  not  before 
the  court.  The  case  as  reported  in  19  Howard  discloses  that  each  member  of  this 
majority  held  to  this  opinion,  and  that  neither  of  them  in  their  separ.ate  or  concurring 
opinions  examined  the  merits  of  the  plea  or  passed  an  opinion  on  it."  The  names  of 
this  majority  he  gives  as  McLean,  Catrox,  Nei.sox,  Grier,  and  Campbell.  At 
the  first  argument  Nelson,  J.,  had  doubted  on  this  point,  but  had  then  voted  with 
tlie  other  party.  —  Ed. 


492  SCOTT   V.    SANDFOED.  [CII.VP.  IV. 

that  of  the  Territory  of  Minnesota  affected  tlie  status  of  the  parties 
after  their  return  to  Missouri.  The  law  of  that  State  made  theui  slaves. 
2.  That  the  Missouri  Compromise  Act  was  unconstitutional.  He  con- 
cluded by  saying  that  "  the  judgment  should  be  atlirmed  on  the  ground 
that  the  Circuit  Court  had  no  jurisdiction,  or  that  the  case  should  be 
reversed  and  remanded,  that  the  suit  may  be  dismissed." 

Catron,  J.  (p.  518),  held  that  the  plea  in  abatement  was  not  open. 
As  regarded  the  residence  in  Illinois,  he  agreed  with  the  opinion  of  ^Ir. 
Justice  Nelson,  —  "  with  which  I  not  only  concur  but  think  his  opinion 
is  the  most  conclusive  argument  on  tlie  subject  within  my  knowledge." 
As  regarded  the  residence  at  Fort  Snellino;  he  declared  that  the  Act 
of  Congress  was  unconstitutional.  He  said  nothing  as  to  the  form  of 
the  judgment;  and  closed  his  opinion  thus:  "For  the  reasons  above 
stated  I  concur  with  my  brother  judges  that  the  plaintiff  Scott  is  a 
slave  and  was  so  when  this  suit  was  brought." 

Of  these  seven  judges  composing  the  majority  who  agreed,  in  sub- 
stance, as  to  the  disposition  of  the  case,  only  three  passed  upon  the  plea 
in  abatement,  and  so  upon  the  status  of  free  negroes.  Siv  n greed  in 
declaring  the  Missouri  Compromise  Act  unconstitutional.  But  all,  with- 
out exception,  also  agreed  in  the  doctrine  of  Mr.  Justice  Kelson's 
opinion,  whicli,  as  the  majority  had  formerly  all  agreed,  and  none  after- 
wards denied,  was  enough  to  dispose  of  the  case  without  raising  any 
question  on  that  Act. 

McLeak,  J.,  and  Curtis,  J.,  dissented. 

The  former  (p.  529)  held,  1.  That  the  plea  in  abatement  was  not 
open .  2.  That  slavery  existed  only  by  local  law,  and  that  Scott  and 
his  family  were  freed  by  being  taken  into  the  free  State  of  Illinois , 
and  also  into  the  Territory  of  Minnesota,  where  by  a  law  of  Congress 
/the  Act  of  1820  above  named)  slavery  was  i)rohibited.  3.  That  there 
was  nothing  on  the  record  to  show  a  voluntary  return  of  Scott  and  hi s 
family  to  Missouri.  4.  That  it  was  not  the  settled  law  of  JNIissouri 
that  the  slave  status  revived  on  returning  there,  but  the  contrary. 
5.  That  the  court  below  erred  in  refusing  to  take  notice  of  the  Act  of 
Congress  or  the  Constitution  of  Illinois. 

Curtis,  J.,  began  by  saying  "  I  dissent  from  the  opinion  pronounced 
by  the  Chief  Justice,  and  from  the  judgment  which  the  majority  of 
the  court  think  it  proper  to  render  in  this  case."  He  held,  1.  That  the 
plea  in  abatement  was  now  open,  but  that  below  it  w^^s  rightly  held 
insufficient,  since  negroes  the  descendants  of  ancestors  brouglit  here 
and  sold  as  slaves  may  well  be  citizens  of  the  States  and  of  the  TTnitcd 
States.  2.  That  inasmuch  as  the  law  of  the  Territory  where  Scott  and  his 
wife  had  been  married,  had  a  special  and  decisive  application  to  the 
case,  it  was  necessary  to  consider  the  effect  of  that  law.  3.  That  the 
Act  of  Congress  prohi1)iting  slavery  there  was  valid  and  operated  to 
give  freedom  to  Scott  and  his  fan^ily.  4.  That  the  consent  of  the 
master  to  the  marriage  was  an  act  of  emancipation.  5.  That  the  law 
of  Missouri  did  not  in  fact,  and  could  not  in  law,  restore  the  status  of 
slavery. 


CHAP.  IV.]  SCOTT   V.    SANDFOED.  493 

Mr.  Justice  Curtis  did  not  consider  specifically  the  effect  of  tlie 
residence  in  Illinois;  on  his  view,  it  was  not  necessary.  "I  have 
touched,''  he  said,  "no  question  which,  in  the  view  I  have  taken,  it 
was  not  absolutely  necessary  for  me  to  pass  upon,  to  ascertain  whether 
the  judgment  of  the  Circuit  Court  should  stand  or  be  reversed.  I 
have  avoided  no  question  on  which  the  validity  of  that  judgment 
depends.  To  have  done  either  more  or  less  would  have  been  incon- 
sistent with  my  views  of  my  duty."]  ^ 

1  The  great  historical  im])ortauce  of  this  case  will  justify  the  quotation  of  the  fol- 
lowing passages  relating  to  the  manner  in  which  the  result  was  arrived  at.  Tyler's 
''Life  of  Chief  Justice  Taney"  (pp.  382-385),  preserves  a  letter  from  Hon.  John  A. 
Campbell,  formerly  Mr.  Justice  Campbell,  of  Nov.  24,  1870,  and  another  confirm- 
ing it,  from  Mr.  Justice  Nelson,  of  May  13,  1871.  The  former  letter  says:  " The 
case  of  Dred  Scott  was  argued  for  tlie  first  time  in  tlie  spring  of  1856.  There  were 
several  discussions  at  the  conferences  of  the  judges  upon  the  case.  There  was  much 
division  of  opinion  among  tliem,  and  esi)eeially  upon  the  first  question  presented. 
.  .  .  The  minority  of  the  court,  at  tiiat  time,  were  of  opinion  that  tliis  plea  was  not 
open  for  examination,  nor  the  judgment  on  it  for  review,  because  a  demurrer  had  been 
filed  to  it  and  sustained.  .  .  .  Tliis  minority  was  composed  of  Justices  McLean, 
Q-.vTKoy,  Grier,  and  Campbell.  The  majority  were  Chief  Justice  Taxey,  Jistices  if 
Wayne,  Nelson,  Daniel,  and  Curtis.  Justice  Nelson  hesitated  and  proposed  a  ' 
reargument  of  that  and  other  questions  to  be  had  at  the  next  terra,  and  this  was 
assented  to,  none  objecting.  At  the  next  term  these  questions  were  again  argued 
[in  December,  1856].  Upon  the  reargument  Justice  Nelson's  oi:)iuiou  concurred  with 
that  of  the  minority  above  mentioned,  and  they,  bv  this  addition,  Ijecame  the  majority. 
Each  of  thrse  iml^-es  has  recorded  in  ills  opinion  that  there  was  nothing  in  the  pleaTii 
abatement  lit,-['uru  the  court  for  review."  In  his  address  as  chairman  of  a  meeting  of 
the  Bar  of  the  Supreme  Court  of  the  United  States,  September  15,  1874,  on  occasion 
of  the  death  of  Hon.  B.  R.  Curtis,  formerly  Mr.  Justice  Curtis,  Mr.  Campbell  repeated 
the  foregoing  statements,  and  in  allusion  to  the  irregular  nature  of  the  opinion  of  the 
Chief  Justice  and  to  Mr.  Justice  Curtis's  comments  upon  it,  he  added  (20  Wall,  xi.), 
"  It  was  agreed  at  a  day  in  the  term  that  the  questions  should  be  considered,  and  each 
justice  might  deal  with  them  as  his  judgment  dictated.  The  abstinence  of  a  portion 
of  the  court,  on  the  one  side,  and  the  discussion  by  the  others,  was  regulated  by  their 
own  opinion  as  before  expressed.  And  the  facts  being  understood,  no  censure  was 
deserved  by  any.  Mv  belief  is  that  Justice  Curtis  misconceived  the  facts  and  sup- 
posed a  portion  of  the  court  had  concurred  in  deciding  a  case  which  they  had  liefore 
determined  was  not  before  the  court.  I  make  tliis  statement  in  justice  to  him  as  well 
as  to  my  other  brethren." 

This  remark  indicates  the  true  character  of  the  opinion  given  by  the  Chief 
<J«£tice.  It  was  his  own  and  not  that  of  the  court.  In  substance  the  situation 
is  identical  with  that  in  Barnes  v.  The  Railroads,  17  Wall.  294,  in  which  the  Re- 
porter accurately  states  (p.  299)  in  introducing  the  opinions,  that  "  Mr.  Justice 
Clifford  now,  March  3,  1873,  delivered  the  judgment  of  the  court;"  and,  in  his 
headnote,  that  it  was  "  held  (by  a  court  nearly  equally  divided,  and  the  majority 
who  agreed  in  the  judgment  not  agreeing  in  the  grounds  of  it)  that,"  &c.  In  that 
case,  also,  the  opinion  of  the  individual  justice  who  delivered  the  judgment  of  the 
court  was  erroneously  assumed,  even  by  the  counsel  in  the  case,  to  be  the  opinion  of 
the  court  itself ;  although  this  opinion  had  not,  as  in  the  Dred  Scott.  Cane,  been  so 
called  by  any  of  the  judges  of  the  court.  See  the  Reporter's  "note"  and  footnote 
in  17  Wallace,  335,  In  substance  also  it  was  the  same  situation  as  in  the  License 
Cases  (5  How.  504),  where,  ten  years  before,  the  judges  agreed  in  the  judgment,  but 
"no  opinion  of  the  court  was  pronounced.  Each  justice  gave  his  own  reasons  for 
affirming  the  decisions  of  the  State  courts"  (16  Curtis's  Decisions,  514).  How  im- 
perfectly an  opinion,  which  is  allowed  to  be  called  that  of  the  court,  may  represent  the 


494  SCOTT  V.   SANDFOED.  [CHAP.  IV. 

majority  of  the  tribunal  in  anything  but  the  final  judgment  which  it  renders,  is  further 
illustrated  by  Mr.  Justice  Wayne's  narrative,  given  in  tlie  Passenger  Cases,  7  How. 
429-436,  as  to  tlie  "Opinion  of  the  court,"  in  New  Yurie  v.  Mihi,  11  Pet.  102.  "Thus 
there  were  left,"  he  says,  "of  the  seven  judges  but  two,  the  Chief  Justice  and  Mr. 
Justice  Barbour,  in  favor  of  the  opinion  as  a  wliole."  Compare,  also,  the  "  oijinion  of 
the  court"  in  Doyd  v.  Nebraska,  143  U.  S.  135,  with  the  Reporter's  headuote  showing 
the  actual  difference  among  the  judges. 

In  the  "  Memoir  of  B.  R.  Curtis,"  written  by  his  brother,  George  T.  Curtis,  one  of 
the  counsel  for  Scott  (vol.  i.  201,  e<  seq),  it  is  said  "  The  Chief  Justice  and  Jistices 
Wayne,  Catron.  Daxiel.  and  Campbell  were  from  slav(  ImMiua-  States;  Justices 
McLean,  Nelson,  Griek,  and  Curtis  were  from  non-slaveholding  States.  Tlie  case 
of  Dred  Scott  was  first  argued  at  the  December  term,  1855.  After  consideration  and 
comparison  of  views,  it  was  determined  bv  a  majority  of  the  judges  that  it  was  not 
necessary  to  decide  the  question  of  Scott's  citizenship  under  the  ijlea  to  the  jufisdic- 
tion,  but  that  the  case  should  be  disposed  of  by  an  examination  of  the  merits;  that  is 
to  say,  by  decidiii;;-  whether  lie  was  a  freeman  or  a  slave,  upon  the  facts  agreed  upon 
by  the  parties  under  the  plea  in  bar  of  the  action.  One  of  the  questions  thus  arising 
was,  as  the  reader  has  seen,  whether  a  temporary  residence  of  a  slaye  in  the  State  of 
Illinois  worked  an  emancipation,  notwithstanding  his  return  to  Missouri.  If  it  did  not. 
it  might  be  unnecessary  to  act  upon  the  question  of  the  power  of  Congress  to  prohiiiit 
slavery  in  the  territory  of  the  United  States,  into  which  Scott  had  been  taken  from 
Illinois,  unless  there  were  circumstances  in  his  residence  in  the  Federal  territory 
which  ought  to  lead  to  a  different  conclusion.  It  was  assigned  to  Judge  Nelson  to 
write  the  opinion  of  the  court  upon  this  view  of  the  case ;  in  which  view,  however. 
Judge  McLeau  and  Judge  Curtis  did  not  concur.  Judge  Nelson  wrote  an  opinion, 
which,  from  its  internal  evidence,  was  manifestly  designed  to  stand  and  be  delivered  as 
the  opinion  of  a  majority  of  the  bench.  .  .  .  The  conclusion  reached  by  this  opinion 
was.  n_ot,  as  was  afterwards  directed,  that  the  case  sIkjuUI  be  dismisscil  for  want  of 
jurisdiction,  but  that  the  judgment  of  the  Circuit  Court,  which  had  held  Scott  to  l|e 
still  a  slave,  sliould  be  affirmed.  > 

"  The  astuteness  with  which  this  opinion  avoided  a  decision  of  the  question  arising 
out  of  the  residence  of  Scott  in  a  Territory  of  the  United  States  where  slavery  was  pro- 
hibited by  an  Act  of  Congress,  and  the  remarkable  subtilty  of  the  reasoning  that  this, 
too,  was  a  matter  for  the  State  court  to  decide,  because  the  law  of  the  Territory  could 
have  no  extra-territorial  force  except  such  as  the  State  of  Missouri  might  extend  to  it 
under  the  comity  of  nations,  —  show  very  distinctly  that,  after  the  first  argument  of  the 
case  in  the  Supreme  Court,  it  was  not  deemed,  by  a  majority  of  the  bench,  to  be  either 
necessary  or  prudent  to  exin-ess  any  oiiiuion  upon  the  constitutional  power  of  Congress 
to  prohibit  slavery  in  the  Territories  of  the  United  States.  .  .  . 

"  At  some  time  after  the  first  argument  of  the  case,  but  during  the  same  term,  and 
after  Judge  Nelson's  opinion  had  been  written,  a  motion  was  made  in  a  conference  of 
the  court  for  a  re-argument  of  the  case  at  the  next  term.  This  motion  prevailed,  and 
Judge  Nelson's  opinion  was  consequently  set  aside.  Two  questions  were  then  care- 
fully framed  by  the  Chief  Justice,  to  be  argued  cle  novo  at  the  bar,  in  the  following 
terms :  — 

"  1 .  Whether,  after  the  plaintiff  had  demurred  to  the  defendant's  first  plea  to  the 
jurisdiction  of  the  court  below,  and  the  court  had  given  judgment  on  that  demurrer  in 
favor  of  the  plaintiff,  and  had  ordered  the  defendant  to  answer  over,  and  the  defend- 
ant had  submitted  to  that  judgment  and  pleaded  over  to  the  merits,  the  appellate  court 
can  take  notice  of  the  facts  admitted  on  the  record  by  the  demurrer,  which  were 
pleaded  in  bar  of  the  jurisdiction  of  the  court  below,  so  as  to  decide  whether  that  court 
had  jurisdiction  to  hear  and  determine  the  cause  ? 

"  2.  Whether  or  not,  assuming  that  the  appellate  court  is  bound  to  take  notice  of 
the  facts  appearing  upon  the  record,  the  plaintiff  is  a  citizen  of  the  State  of  Missouri, 
within  the  meaning  of  the  eleventh  section  of  the  Judiciary  Act  of  1789  ?  .  .  . 

"After  this  second  argument,  and  at  some  time  during  the  same  term,  Mr.  Justice 
Wayne  became  convinced  that  it  was  practicable  for  the  Supreme  Court  of  the  United 


CHAP.  IV.]  SCOTT   V.    SANDFOED.  495 

States  to  quiet  all  agitation  ou  the  question  of  slavery  in  the  Territories,  by  affirming 
that  Congress  had  no  constitutional  i)owcr  to  i^rohibit  its  iutroductiun.  With  the  best 
intentions,  with  entirely  iiatriotic  motives,  and  believing  thurouglily  that  such  was  the 
law  on  this  constitutional  nuestion,  he  regarded  it  as  eminently  expedient  that  it  should 
be  so  determined  by  the  court.  In  tiie  short  observations  which  he  read  in  the  court, 
referring  to  the  constitutional  questions  involved,  he  said  that  '  the  ])eace  and  harmony 
of  the  country  required  the  settlement  of  them  by  judicial  decision ; '  and  it  is  well 
known,  from  his  frank  avowals  in  conversation  at  the  time,  that  he  regarded  it  as  a 
matter  of  great  good  fortune  to  his  own  section  of  the  country,  that  he  had  succeeded 
in  producing  a  determination,  on  the  part  of  a  sufficient  number  of  his  brethren,  to  act 
upon  the  constitutional  question  which  had  so  divided  the  people  of  the  United  States. 
lie  ]jersuaded  the  Chief  Justice,  Judge  Grier,  and  Judge  Catron  of  tlie  public  expe- 
cjiency  of  this  course  ;  and  being  perfectly  convinced,  as  he  somehow  had  convinced 
himself,  that  the  appellate  court  could  hold  that  the  Circuit  Court  had  no  jurisdiction 
of  the  case,  because  a  free  negro  could  not  be  a  '  citizen,'  and  yet  could  go  ou  and 
decide  all  questions  arising  upon  the  merits,  he  could  conscientiously  concur,  as  he  did, 
in  every  part  of  the  opinion  which  the  Chief  Justice,  after  the  second  argument,  felt 
called  upon  to  write,  and  which  was  denominated  the  opinion  of  the  court,  although  no 
other  judge,  excepting  Mr.  Justice  Wayne,  concurred  in  all  its  points,  reasonings,  and 
conclusions." 

The  same  writer,  in  speaking  of  the  dissenting  opinion  of  Judge  Curtis  (lb.  231), 
says :  "  In  my  judgment,  its  permanent  importance  consists  in  the  demonstration 
which  it  made  of  this  proposition  :  That  the  Supreme  Court  of  the  United  States,  sit- 
ti ng  as  an  appellate  tribunal  to  correct  tlie  errors  of  a  Circuit  Court,  cannot,  under  a 
plea  to  the  jurisdiction,  decide  that  tlie  lower  court  had  no  jurisdiction  to  hear  and 
determine  the  cause,  and  tlieii  proceed  to  decide  a  question  of  constitutional  law  which 
arises  only  on  a  plea  in  bar  to  the  merits  of  the  action.  The  following  impressive 
close  of  Judge  Curtis's  discussion  of  this  part  of  the  subject  comprehends  the  wliole 
substance  of  his  objection  to  the  course  of  a  majority  of  his  brethren  :  '  I  do  not  con- 
sider it  to  be  within  the  scope  of  the  judicial  power  of  the  Majority  of  the  court  to  pass 
upon  any  question  respecting  the  plaintiff's  citizenship  in  Missouri,  save  that  raised 
by  the  plea  to  the  jurisdiction ;  and  I  do  not  hold  any  opinion  of  this  court,  or  any 
court,  binding,  when  expressed  on  a  question  not  lc!:!.itimately  befurc  it.  Tlie  iudgment 
of  this  court  is.  that  the  case  is  to  be  dismissed  for  want  of  jurisdiction,  because  tlie 
plaintiff  was  not  a  citizen  of  Missouri,  as  he  alleged  in  his  declaration.  Into  that 
judgment,  according  to  the  settled  course  of  this  court,  notliing  appearing  after  a 
plea  to  the  merits  can  enter.  A  great  question  of  -constitutional  law,  deeply  affect- 
ing tlie  peace  and  welfare  of  the  country,  is  not,  in  my  opinion,  a  fit  subject  to  be  thus 
reached.' 

"  To  those  who  do  not  fully  appreciate  the  judicial  functions  of  the  Supreme  Court 
of  the  United  States,  or  who  do  not  fully  understand  the  limits  within  ^vhich  it  should 
carefully  act,  this  may  seem  to  have  been  hypercritical  in  its  technicality.  But  to  tlie 
instructed  aud  enlightened  student  of  our  national  jurisprudence,  who  contemplates 
the  true  function  of  the  Supreme  Court  as  the  judicial  arbiter  of  constitutional  ques- 
tions, these  apparent  technicalities  will  be  recognized  as  pregnant  with  most  important 
substance ;  for  it  cannot  be  doubted  that  the  temptation  to  be  drawn  into  the  expres- 
sion of  opinions  on  constitutional  questions,  because  they  are  entering  into  the  politics 
of  the  time,  is  one  against  which  that  court  should  be  hedged  by  the  strict  and  Logical 
order  of  judicial  action,  which  can  alone  produce  a  judicial,  and  therefore  a  binding, 
determination." 

In  a  very  careful  and  valuable  discussion  of  this  case  ("  A  Legal  Review  of  the  Case 
of  Dred  Scott,"  Boston,  Crosby,  Nichols  &  Co.,  1857,  reprinted,  with  some  alterations, 
from  the  [Boston]  "  Law  Reporter  "  for  June,  ISaT),  liy  Messrs.  John  Lowell  and  Horace 
Gray,  better  known  afterwards  as  Judge  Lowell,  of  the  United  States  Circuit  Cmirt 
for  Massachusetts,  and  Mr.  Justice  Gray,  of  the  Supreme  Court  of  the  United  States, 
it  is  said  (p.  25)  :  "  The  court,  as  we  have  shown,  undoubtedly  did  decide  that  the 


496 


LEMMOX   V.    THE   PEOPLE. 


[chap.  IV. 


at-/ 


pliviiitiff  was  a  slave  when  this  suit  was  brought ;  and  in  order  to  arrive  at  this  conclusion, 
they  must  liave  held,  either  tiiat  he  never  became  entitled  to  his  freedom,  or  that,  hav- 
ing acquired  such  a  right,  he  lost  it  by  his  return  to  Missouri.  But  in  order  to  determine 
the  case  upon  tlie  first  ground,  it  must  have  been  held,  not  only  that  the  jtlaintiff  did 
not  become  entitled  to  freedom  in  the  Territory,  but  also  that  he  could  not  have 
asserted  such  a  right  in  Illinois,  —  a  position  wliich  most  of  the  judges  do  not  even 
suf^gest.  On  the  contrary,  the  decision,  so  far  as  the  residence  in  Illinois  is  concerned, 
is  T)Ut  ilistinctly  upon  the  ground  that  the  laws  of  Illinois  couM  not  operate  on  the 
nlaintiff  alter  his  return  to  -Missouri.  'I'liis  decision  disjjoses  e(jually  of  liis  residence 
in  tlie  Territorv,  for  liis  stay  in  eacli  ]ilace  was  for  an  equal  time,  and  for  similar  pur- 
poses. The  wiiole  case  being  thus  disposed  of,  the  oijinion  on  the  Missouri  Compro- 
mise Act  was  clearly  extra-judicial." 

And  later  on  (p.  51 ),  it  is  added  :  "  Measuring  the  point  adjudged,  therefore,  by  all 
the  mateiial  facts  of  the  case,  it  is  set  forth  at  length  in  our  headnote,  or  may  be 
/  briefly  stated  thus  :^V  slave  taken  by  his  master  into  a  State  or  Territorv  where 
^~  t;l;ivery  is  prohiliited  by  law,  and  afterwards  returning  with  his  m.aster  into  a  slave 
State,  and  ae(iuiring  a  residence  there,  if  deemed  by  the  highest  court  of  that  State, 
a fter  his  return,  to  be  a  slave,  must  be  deemed  a  slave  bv  the  courts  of  the  United 
States,  and  therefore  not  entitled  to  sue  in  one  of  those  courts  as  a  citizen  of  that 
State.>In  this  conclusion  seven  of  the  nine  judges  concur;  and  it  is  best  stated  by 
Mr.  Justice  Nelson,  whose  opinion  is  wholly  devoted  to  the  question  of  the  plaintiff's 
condition  in  Missouri  after  his  return,  and  is  the  ablest  in  reasoning,  and  most  judicial 
in  tone  of  all  the  opinions  of  the  majority." 

Compare  Bryce,  Am.  Com.  i.  256,  257  (1st  ed.)  :  "Occasionally  it  (the  Supreme 
Court  of  the  United  States)  has  been  required  to  give  decisions  which  have  worked 
with  tremendous  force  on  politics.  The  most  famous  of  these  was  the  Died  ScoU_Case, 
in  which  the  Supreme  Court,  on  an  action  by  a  negro  for  assault  and  battery  against 
the  person  claiming  to  be  his  master,  dpclnred  that  a  slave  taken  temporarily  to  a  free 
State  and  to  a  Territory  in  which  Congress  had  forbidden  slavery,  and  afterwards 
returning  into  a  slave  State  and  resuming  residence  there,  was  not  a  citizen  capable  of 
suing  in  the  federal  courts  if  bv  the  law  of  the  slave  State  he  was  still  a  slave.  Tiiis 
was  the  point  which  actually  called  for  decision;  but  the  majority  of  the  court  — for 
there  wa*  a  dissentient  minority  —  went  further,  and  delivered  a  variety  of  (lirto  on 
various  other  points  touching  the  legal  status  of  negroes  and  the  constitutional  views 
of  slavery.  This  judgment,  since  the  language  used  in  it  seemed  to  cut  off  the  hope  of 
a  settlement  bv  the  authority  of  Congre.^s  of  the  then  (1857)  pending  disputes  over 
slavery  and  its  extension,  did  much  to  precipitate  the  Civil  War." 

See  Hohbs  v.  F07/7,  6  Watts,  55.3  (1837)  ;  West  Chester,  S^c.  R.  R.  Co.  v.  Miles,  55 
Pa.  St.  209  (1867)  ;  and  Cor//  v.  Carter,  48  Ind.  327,  338  (1874).  See  also,  generally, 
Cobb  on  Slavery  (1858),  and  Stroud  on  Slavery  (1827).  —Ed. 


.^  -     .       .  /         LEMMON  V.  THE  PEOPLE. 

I    0      J^^^"^  New  York  Court  of  Appeals.     1860. 

r\\MH^,^^^^  I  poiV.  r.562.] 

/    J  (I  / 

[Appkat.  from  Vindgmcnt  of  the  Supreme  Court  (DeaJ^57),  affirm- 
it\  {a^  ing  an  order  of  a  jiistif-e  of  the  Superior  Court  of  the  cit^v  of  New  York 
^    J-'         (Nov.  13,  1852)  digcharging  on  haheas  corpus  eight  negroes  claimed 


.HA. 


■'■T^Uy'l^TyX.    r:xJ\4n^c(,    ^.y^t/uj-do^-^JL  <x.    '0_-^ct^i/-«.  ^-c^c/to    LM^iX  cSKs^^Xx. 

CHAP.  IV.]  LEMMON   ??.    THE   PEOPLE.  497  -^-^^1^°^^"^^ 

as  tlie  .slaves  of  Juliet  Lcmmoii.]      Charles  0' Conor, ^  for  the  appellants  ;    cJlcu'^-*^ 
Joseph  Blwit  and  Wm.  31.  Emirta,  for  the  respondents.  /xP/uMi^  ^ 

Denio,  J.  The  petition  upon  which  the  writ  of  habeas  corjms  was  / 
issued,  states  that  the  colored  persons  sought  to  be  discharucd  from  ^  ' 
imprisonment  were,  on  the  in'cccding-  niaht,  taken  from  the  steamer  ^/^y/Y  lyt 
"  City  of  Richmond,"  in  the  harbor  of  New  York,  and  at  the  time  of  pre-  y_  J  -/{a^ 
senting  the  petition,  were  confined  in  a  certain  house  in  Carlisle  Street  / 
in  that  city.  The  writ  is  directed  to  the  appellant  In'  the  name  of  P^^^^ 
"Lemmings,"  as  the  person  having  in  charge  "eight  colored  persons  /()  ^w 
lately  taken  from  the  steamer  'City  of  Richmond,'  and  to  the  man  in  OA^d.  U' 
whose  house  in  Carlisle  vStreet  the}^  were  confined."  The  return  is  .  ./ 
made  by  Lemmon,  the  appellant,  and  it  speaks  of  the  colored  persons  l^  ''.m^ 
who  are  therein  alleged  to  be  slaves,  and  the  property  of  Juliet  Lem-  ;/>-  a-^if-^Mo- 
mon,  as  "  the  eight  slaves  or  persons  named  in  the  said  writ  of  habeas  ^.^..^c^  eurt 
corpus."  It  alleges  that  they  were  taken  out  of  the  possession  of  Mrs.  ^  lijtLe^ 
T.emmon,  while  i)i  transitu  between  Norfolk,  in  Virginia,  and  the  State      ^  , 

of  Texas,  and  that  both  Virginia  and  Texas  are  slaveholding-  States ;  "KoJU  Jrd^ 
that  she  had  no  intention  of  bringing  the  slaves  into  this  State  to  ^.f/^i^  /j^^"^ 
remain  therein,  or  in  any  manner  excei)t  on  their  transit  as  aforesaid      ,,  ,  -(4 

through  the  port  of  New  York  ;  that  she  was  compelled  by  necessity  _^  A 

to  touch  or  land,  but  did  not  intend  to  remain  longer  than  necessary,   irC  iAA^ttux^ 
and  that  such  landing  was  for  the  purpose  of  passnge  and  transit  and  ^^^^  /fM/iiA. 
not  otherwise,  and  that  she  did  not  intend  to  sell  the  slaves.     It  is     ,  ■  Si' 
also  stated  that  she  was  compelled  b}*  "  necessity  or  accident"  to  take  "^''^^-^'-^'^''^  ' 
passage   from   Norfolk  in    the    above-mentioned   steamship,  and  that  JiU.  ZL'^f-^^^^ 
Texas  was  her  ultimate  ])lace  of  destination.  ^_^^  'iXu.  U- 

•I  understand  the  effect  of  these  statements  to  be  that  Mrs.  Lemmon,  , 

being  the  owner  of  these  slaves,  desired  to  take  them  from  her  resi-  '-'*'*^^' 
dence  in  Norfolk  to  tlic  State  of  Texas  ;  and,  as  a  means  of  effecting  ^^UtiA/C 
that  purpose,   she  eml)arked,   in  the   steamship   mentioned,  for  New  rJl^jj^/s^  MjC 
York,  witli  a  view  to  secure  a  passage  from  thence  to  her  place  of  dcs-  ,         . 

tin  at  ion.     As  nothing  is  said  of  an}'  stress  of  weather,  and  no  marine  '^'^^^  "^^ 
casualt}^  is  mentioned,  the  necessity  of  landing,  which  is  spoken  of,  ■yC^Pfuj'^  ^ 
refers,    no  doubt,    to   the   exigency   of  that  mode   of 


L  prosecuting  her      U^    P^ 
Dund  for  the  Gnlf  ^. 


journey.     If  the  ship  in  which  she  arrived  was  not  boui...  ._.    ^ 

of  Mexico,  she  would  be  under  the  necessit}'  of  landing  at  New  York  <^*-^-^^'<^ 
to  re-embark  in  some  other  vessel  sailing  for  that  part  of  the  United  -jC  aAsX.  ^^ 
States ;  and  this,  I  suppose,  is  what  it  was  intended  to  state.     Tiie   ^n^^i^a  /O^ 
necessit}' or  accident  which  is  mentioned  as  having  compelled  her  to  /^ 

embark  at  Norfolk  in  the  "  City  of  Richmond,"  is  understood  to  refer     l/V<X  "-^ 
to  some  circumstance  which  prevented  her  making  a  direct  voyage  from     a^,,,^,^_,^^yC(uA. 
Virginia  to  Texas.     Tlie  question  to  be  decided  is  whether  t!ic  bringing      , /^ 
tlie  slaves  into  this  State  under  these  circumstances  entitled  tliem  to      ^  ^y     . 
their  freedom.  Jw  ^^^^^ 

1  The  extraordinary  argument  of  this  distinguished  lawyer  is  fully  reported.     It  can-    '^-^^'^  ^Vi^ 
not  find  a  place  here,  but  it  is  well  worth  attention,  —  wliatever  may  be  thought  of  the  ^n/fj^^lu^^^ 
soundness  of  its  positions.  —  Ed. 

VOL.  I.  —  32  "       •  /f/  /y 

(HA/u^  ^^XjM)  .        ^u   (Ldi  ^  (U-  'U-  AA^OA.  'y-aJUd    (x^ck  tU. 


■^T'V^^*'^^^^    498  LEMMON   V.   THE   PEOPLE.  [CHAP.  IV. 


t 


1%-    ttiX/UL 


The  intention,  and  the  effect,  of  the  statutes  of  this  State  bearing 

^*^'^^     upon  the  point  are  ver^-  plain  and  unequivocal.     By  an  Act  ):)asscd  in 

1/^ /l-f .        1817,  it  was  declared  that  no  person  held  as  a  slave  should  be  imported, 

introduced  oi'  broiiuht  into  this  State  on  any  pretence  whatever,  except 

in  the  cases  afterwards  mentioned  in  the  Act,  and  any  slave  brouuht 

here  contrary  to  the  Act  was  declared  to  be  free.     Among  the  excci)ted 

^yy^jJUCu  -c^ses  was  that  of  a  person,  not  an  inhabitant  of  the  State,  passing 

^  tlirongh  it.  who  was  allowed  to  bring  his  slaves  with  him  ;  but  they 

"'*'^-^  were  not  to  remain  in  the  State  longer  than  nine  months.     Laws  of 

"Xajl  1817,  ch.  137,  §§  9,  15.     The  portions  of  this  Act  which  concern  the 

present  question  were  re-enacted  at  the  revision  of  the  laws  in  1830. 

y^vxiv        -pije  fji-gt  and  last  sections  of  the  title  are  in  the  following  language :  — 

L  A'^DO      "  §-!:- ^o  person  held  as  a  slave  shall  be  imported,  introduced  or 

*  brought  into  this  State  on  an}'  pretence  whatsoever,  except  in  the 

cases  hereinafter  specified.     Ever}'  such  person  shall  be  free.     Every 

\x.  v>.,-<x/a    person  held  as  a  slave  who  hath  been  introduced  or  brought  in  this 

N« .-.  \    1     State  contrary  to  the  laws  in  force  at  the  time,  shall  be  free." 

"  §  16.    Every  person  born  in  this  State,  whether  white  or  colored, 

"ttAfi.  is  free.     Every  person  who  shall  hereafter  be  born  within  this  State 

-4  .  OL/x,      shall  be  free  ;  and  ever}'  person  brought  into  this  State  as  a  slave, 

except  as  authorized  by  this  title,  shall  be  free."     R.  S.,  part  1,  ch. 

^^^^mA^j^  20,  tit.  7. 

The  intermediate  sections,  three  to  seven  inclusive,  contain  the  ex- 
ceptions.     Section  G  is  .is  follows  :   "  Any  person,  not  being  an  inhabi- 
;t"  vc^  "       tant  of  this  State,  who  shall  be  travelling  to  or  from,  or  passing  through 
this  State,  may  bring  with  him  any  person  lawfully  held  in  slavery, 
I  and  may  take  such  person  with  him  from  this  State  ;  but  the  person  so 

^^  "^^       held  in  slavery  shall  not  reside  or  continue  in  this  State  more  than  nine 
/yAcLA/e^      months  ;  if  such  residence  be  continued  beyond  that  time  such  person 
shall  be  free."     In  the  year  1841,  the  legislature  repealed  this  section, 
-^  together  with  the  four  containing  other  exceptions  to  the  general  pro- 

a40t~  '       visions   above   mentioned.       Ch.   247.     JTlie  effect  of  this  repeal  was 
(J      )  to  render  the  1st  and  IGth  sections  absolute  and  unqualified.     If  any 

^fl^      doubt  of  this  could  be  entertained  upon  the  perusal  of  the  part  of  the 
%L  JH         title  left  unrepealed,  the  rules  of  construction  would  oblige  us  to  look 
,r^,,h     ^^  ^^^^  repealed  portions  in  order  to  ascertain  the  sense  of  the  residue. 
Bussey  v.  Story,  4  Barn.  &  Adolph.  98.     Thus  examined,  tlie  mean- 
ing of  the  statute  is  as  plain  as  though  the  legislature  had  declared  in 
terms  that  if  any  person  should  introduce  a  slave  into  this  State,  in  the 
i^o.uU<r'       course  of  a  journey  to  or  from  it,  or  in  passing  through  it,  the  slave 
1  #      •    shall  l^e  free. 
^     vi'  If,  therefore,  the  legislature  had  the  constitutional  power  to  enact 

^,^^^  ^jj^      this  statute,  the  law  of  the  State  precisely  meets  the  case  of  the  persons 

Hwho  were  ]>rought  before  the  judge  on  the  writ  of  hdhcim  curpux.  and 
his  order  discharging  them  from  constraint  was  unquestionably  con-cct. 
a  JJJj--^  Evp.ry  sovpreign  State  has  a  right  to  determine  by  its  laws  the  condi- 
^  tion  of  all  persons  who  may  at  any  time  be  within  its  jurisdiction;  to 


K 


5  aiui 


CHAP.  IV.]  LEMMON   V.   THE   PEOPLE.  499     C_t\^>a^  • 

exckidc  therefrom  those  -whose  introduction  Would  contravene  its  policy.  \;ji^  C  O/aj 
or  to  dechire  the  cundition.s  ui)un  which  thev  may  be  received,  and  A  X,,.  o^i.- 
what  subordination  or  restraint  may  lawfully  be  allowed  by  one  class  0  ^  ^ 
or  description  of  persons  over  another.  Each  >State  has,  moreoyer,  SXji-Lr^  >f«> 
tlie  ri'dit  to  enact  such  rules  as  it  may  see  fit  resi)ectinu'  the  title  to 
properly,  and  to  declare  what  subjects  sliall,  within  the  State,  ijossess 
the  attributes  of  |)roijerty,  and  what  shall  be  incapable  of  a  proprietary 
riuiit.  These  powers  may  of  course  be  yariously  limited  or  modilied  by 
its  own  constitutional  or  fundamental  laws  ;  but  independentl}'  of  such 
restraints  (and  none  are  alleged  to  exist  affecting  this  case)  the  legis- 
latiye  authority  of  the  State  over  these  subjects  is  without  limit  or 
control,  except  so  far  as  the  State  has  voluntarily  abridged  her  juris- 
diction by  arrangements  with  other  States.  There  are,  it  is  true,  man}' 
cases  where  the  conditions  impressed  upon  persons  and  propert}-  b}'  the 
laws  of  other  friendly  States  may  and  ought  to  be  recognized  within 
our  owai  jurisdiction.  These  are  defined,  in  the  absence  of  express 
legislation,  by  the  general  assent  and  by  the  practice  and  usage  of 
civilized  countries,  and  being  considered  as  incorporated  into  the  muni- 
cipal law,  are  freely  administered  by  the  courts.  They  are  not,  how- 
ever, thus  allowed  on  account  of  any  supposed  power  residing  in 
another  State  to  enact  laws  which  should  be  binding  on  our  tribunals, 
but  from  the  presumed  assent  of  the  law-making  power  to  abide  by 
the  usages  of  other  civilized  States.  Hence  it  follows  that  where  the 
legislature  of  the  State,  in  which  a  right  or  priyilcge  is  claimed  on 
the  ground  of  comit^^,  has  by  its  laws  si)oken  upon  the  subject  of  the 
alleged  right,  the  tribunals  are  not  at  lil)crty  to  search  for  the  rule  of 
decision  among  the  doctrines  of  international  comity,  but  are  bound  to 
adopt  the  directions  laid  down  by  the  polj|i'"i1  <Tovernment  of  their  own 
§tate.  We  have  not,  therefore,  considered  it  necessary  to  inquire 
whether  by  the  law  of  nations,  a  countr}'  where  negro  slavery  is  estab- 
lished has  generally  a  right  to  claim  of  a  neighboring  State,  in  which 
it  is  not  allowed,  the  right  to  have  that  species  of  property  recognized 
and  protected  in  the  course  of  a  lawful  journey  taken  by  the  owner 
through  the  last-raentioned  country,  as  would  undoubtedly  be  the  case" 
■with  a  subject  recognized  as  property  everywhere  ;  and  it  is  proper  to 
say  that  the  counsel  for  the  appellant  has  not  urged  that  principle  in 
support  of  the  claim  of  Mrs.  Lemmon. 

What  has  been  said  as  to  the  right  of  a  sovereign  State  to  determine 
the  status  of  persons  within  its  jurisdiction  applies  to  the  States  of  this 
Union,  except  as  it  has  been  modified  or  restrained  by  the  Constitution 
of  the  United  States.  Groves  v.  Slaugliter,  15  Pet.  419  ;  Moore  v. 
The  People  of  Illinois,  14  How.  13;  City  of  New  York  v.  Miln,  11 
Pet.  131,  139.  There  are  undoubtedly  reasons,  independently  of  the 
provisions  of  the  Federal  Constitution,  for  conciliatory  legislation  on 
the  part  of  the  several  States,  towards  the  polity,  institutions  and 
interests  of  each  other,  of  a  much  more  persuasive  character  than  those 
which  prevail  even  between  the  most  friendly  States  unconnected  by 


500  LEMMON   V.   THE    PEOl'LE.  [CIIAP.  IV. 

any  political  union  ;  but  tliese  are  addressed  exclusively  to  the  political 
power  of  the  respective  States  ;  so  that  whatever  opinion  wc  might 
entertain  as  to  the  reasonableness,  or  policy,  or  even  of  tlie  moral  obli- 
gation of  the  non-slaveholding  States  to  establish  provisions  similar  to 
those  which  have  been  stricken  out  of  the  Revised  Statutes,  it  is  not  in 
our  power,  while  administering  the  laws  of  this  State  in  one  of  its 
tribunals  of  justice,  to  act  at  all  upon  those  sentiments,  when  we  see, 
as  we  cannot  fail  to  do,  that  the  legislature  has  deliberately  repudiated 
them. 

The  power  which  has  been  mentioned  as  residing  in  the  States  is 
assumed  by  the  Constitution  itself  to  extend  to  persons  held  as  slaves 
by  such  of  the  States  as  allow  the  condition  of  slaver}',  and  to  apply 
also  to  a  slave  in  the  territory  of  another  State,  which  did  not  allow 
slavery,  even  unaccompanied  with  an  intention  on  the  part  of  the  owner 
to  hold  him  in  a  state  of  slaver}-  in  such  other  State.  The  provision 
respecting  the  return  of  fugitives  from  service  contains  a  very  strong 
implication  to  that  effect.  It  declares  that  no  person  held  to  service 
or  labor  in  one  State,  under  the  laws  thereof,  escaping  into  another, 
shall  in  consequence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  &c.  There  was  at  least  one  State  which 
at  the  adoption  of  the  Constitution  did  not  tolerate  slaverv  ;  and  in 
several  of  the  other  States  the  number  of  slaves  was  so  small  and  the 
Ijrevailing  sentiment  in  favor  of  emancipation  so  strong,  that  it  was 
morally  certain  that  slavery  would  be  speedily  abolished.  It  was  as- 
sumed by  the  authors  of  tlie  Constitution,  that  the  fact  of  a  Federative 
Union  would  not  of  itself  create  a  duty  on  the  ixart  of  the  States  which 
should  abolish  slavery  to  respect  the  rights  of  the  owners  of  slaves 
escaping  thence  from  the  States  where  it  continued  to  exist.  The 
apprehension  was  not  that  any  of  tlie  States  would  establish  rules  or 
regulations  looking  primarily  to  the  emancipation  of  fugitives  from 
labor,  but  that  the  abolition  of  slavery  in  any  State  would  draw  after 
it  the  i)rinci|)le  that  a  person  held  in  slavery  would  immediatelv  become 
free  on  arriving,  in  any  manner,  within  the  limits  of  such  State.  That 
ji^jiXXA  principle  had  then  recently  been  acted  upon  in  England  in  a  case  of 

ijL,  *VvLflJL*   great  notoriety,  which  could  not  fail  to  be  well  known  to  the  cultivated 
0  and  intelligent  men  who  were  the  principal  actors  in  framing  the  Fed- 

JLi^jU))  ei'al  Constitution.^    A  \^irginia  gentleman  of  the  name  of  Stewart  had 
"^^Z    occasion  to  make  a  voyage  from  his  home  in  that  colony  to  P"ngland,  w/ 
on  liis  own  affairs,  with  the  intention  of  returning  as  soon  as  they  wijre'^ ■. 
transacted  ;   and  he  took  witli  him  as  his  personal  servant  his  negro  - 
slave,  Somerset,  whom  he  had  ]mrchased  in  Yii-ginia  and  was  entitled    (^OAX,. 
to  hold  in  a  state  of  slavery  by  the  laws  prevailing  there.     While  they 
were  in  London,  the  negro  a])sconded  from  the  service  of  his  master, 
i     v_/^   P  if  but  was  re-taken  and  put  on  board  a  vessel  lying  in  the  Thames  bound 
to  Jamaica,  where  slavery  also  prevailed,  for  the  purpose  of  being  there 
oaj?^  ~        sold  as  a  slave.     On   application  to  Lord  Mansfield,  Chief  Justice  of 
^,1^  otjA^iA^  the  King's  Bench,  a  writ  of  habeas  coi'pus  was  issued  to  Knowles  as 


Xa^pU^-c^    ^    %r>-a(    yk  ^^^Ayi^iy^jJ^ 


CHAP.  IV.]  LEMMON   V.    THE   PEOPLE.  501 

mnsf.pr  of  the  vessel,  wliose  return  to  the  writ  disclosed  the  foregoing 
facts.  Lord  Mansfield  referred  the  case  to  the  decision  of  the  Court  of 
King's  Bench,  where  it  was  held,  by  the  unanimous  oijinion  of  tlie 
j udges.  that  the  restraint  was  illeual,  and  the  negro  was  discharged . 
The  JSfegro  Case,  11  Ilai'g.  S.  T.  340;  Somerset  v.  Stewart,  Lofft,  1.^ 
It  was  tlie  ouinion  of  the  court  that  a  state  of  slavery  could  not  exist 
except  by  force  of  uositiye  law,  and  it  being  considered  that  there  was 
no  law  to  upliold  it  in  ICnuland,  the  principles  of  the  law  respectino;  the 
writ  of  habeas  corvus  immediately  a[)plied  themselves  to  the  case,  and 
it  became  impossible  to  continue  the  im]>risonment  of  the  negro.  The 
case  was  decided  in  1772,  and  from  that  time  it  became  a  maxim  that 
slaves  could  not  exist  in  England.  Tlte  idea  was  reiterated  in  the  pop- 
ular literature  of  the  language,  n-nd  fixed  in  the  public  mind  by  a  strilv- 
ing  metaphor  which  attributed  to  the  atmosijhere  of  the  British  Islands 
a  quality  which  caused  the  shackles  of  the  slave  to  fall  off.  The  laws 
of  England  respecting  personal  rights  were  in  general  the  laws  of  the 
colonies,  and  the}-  continued  the  same  S3'stem  after  the  Revolution  b}- 
provisions  in  their  constitutions,  adopting  the  common  law  subject  to 
alterations  by  their  own  statutes.  The  literature  of  the  colonies  was 
that  of  the  mother  country. 

The  aspect  in  which  the  case  of  fugitive  slaves  was  presented  to  the 
authors  of  the  Constitution  therefore  was  this  :  A  number  of  the  States 
had  very  little  interest  in  continuing  the  institution  of  slavery,  and 
were  likely  soon  to  abolish  it  Avitliin  their  limits.  When  they  should 
do  so,  the  principle  of  the  laws  of  England  as  to  personal  rights  and 
the  remedies  for  illegal  imprisonment,  would  immediately  prevail  in 
such  States.  Thp  jiido-mpnt  in  Somerset's  ease  and  tlie  ])rinciples  an- 
nounced by  Lord  Mansfield,  were  standing  admonitions  that  even  a 
temporary  restraint  of  personal  liberty  by  virtue  of  a  title  derived  under 
the  laws  of  slavery,  could  not  be  sustained  where  that  institution  did 
not  exist  by  positive  law,  and  where  the  remedy  by  habeas  corpus^ 
which  was  a  cherished  institution  of  this  country  as  well  as  in  England, 
was  established.  Reading  the  provision  for  the  rendition  of  fugitive 
slaves,  in  the  light  which  these  considerations  afford,_  it  is  impossible 
not  to  perceive  that  the  convention  assumed  the  general  principle  to  be 
that  tlie  escape  of  a  slave  from  a  State  in  which  he  was  lawfully  held 
to  service  into  one  which  had  abolished  slavery  would  ipso  facto  trnn's- 
form  him  into  a  free  man.  This  was  recognized  as  the  legal  conse- 
quence of  a  slave  going  into  a  State  where  slavery  did  not  exist,  even 
though  it  were  without  the  consent  and  against  the  will  of  the  owner. 
A  fortiori  he  would  be  free  if  the  master  voluntarily  brought  him  into 
a  free  State  for  any  purpose  of  his  own.  But  the  provision  in  the  Con- 
stitutionextended  no  further  than  the  case  of  fugitives.  As  to  such 
eases,  the  admitted  general  consequence  of  the  presence  of  a  slave  in  a 

1  For  a  striking  passage  from  an  unpublished  report  of  this  case  by  Tilghman,  after- 
wards Cliief  Justice  of  Pennsylvauia,  then  a  student  of  law  in  England,  see  the  London 
Times  for  October  20,  1883,  in  a  letter  entitled  "American  Law  and  Lawyers."  —  Ed. 


502  LEMMON   V.   THE   PEOPLE.  [CHAP.  IV. 

free  State  was  not  to  prevail,  but  he  was  b}-  an  express  provision  in 
tlie  Federal  compact  to  be  returned  to  the  party  to  whom  the  service 
was  due.  Other  cases  were  left  to  be  governed  by  the  general  laws 
applicable  to  them.  This  was  not  unreasonable,  as  the  owner  was  free 
to  determine  whether  he  would  voluntarily  permit  his  slave  to  go  witliin 
a  jurisdiction  which  did  not  allow  him  to  be  held  in  bondage.  That 
was  within  his  own  power,  but  he  could  not  always  prevent  his  slaves 
from  escaping  out  of  the  State  in  which  their  servile  condition  was 
recognized.  The  provision  was  precisely  suited  to  the  exigency  of  the 
case,  and  it  went  no  further. 

In  examining  other  arrangements  of  the  Constitution,  apparently 
inserted  for  purposes  having  no  reference  to  slavery,  we  ought  to  bear 
in  mind  that  when  passing  the  fuaitive  slave  provision  the  convention 
was  contemplating  the  future  existence  of  States  which  should  have 
abolished  slavery,  in  a  political  union  with  other  States  where  the  insti- 
tution would  still  remain  in  force.  It  would  naturally  be  supposed  that 
if  there  were  other  cases  in  which  the  rights  of  slave-owners  ought  to 
be  protected  in  the  States  which  should  abolish  slavery,  they  would  be 
adjusted  in  connection  with  the  provision  looking  specially  to  that  case, 
instead  of  being  left  to  be  deduced  by  construction  from  clauses 
intended  primarily  for  cases  to  which  slavery  had  no  necessary  relation. 
It  has  been  decided  that  the  fugitive  clause  does  not  extend  beyond 
the  case  of  the  actual  escape  of  a  slave  from  one  State  to  another. 
Ux  parte  Simmons,  4  Wash.  C.  C.  R.  396.  But  the  provision  is 
plainly  so  limited  by  its  own  language. 

The  Constitution  declares  that  the  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the  several  States. 
Art.  4,  §  2.  No  provision  in  that  instrument  has  so  strongly  tended  to 
constitute  the  citizens  of  the  United  States  one  people  as  this.  Its 
influence  in  that  direction  cannot  be  fully  estimated  without  a  consider- 
ation of  what  would  have  been  the  condition  of  the  people  if  it  or  some 
similar  provision  had  not  been  inserted.  Prior  to  the  adoption  of  the 
Articles  of  Confederation,  the  British  colonies  on  this  continent  had  no 
political  connection,  except  that  they  were  severally  dependencies  of 
the  British  crown.  Their  relation  to  each  other  was  the  same  which 
they  respectively  bore  to  the  other  English  colonies,  whether  on  this 
continent  or  in  Europe  or  Asia.  When,  in  consequence  of  the  Revolu- 
tion, they  severally  became  independent  and  sovereign  States,  the  citi- 
zens of  each  State  would  have  been  under  all  the  disabilities  of  alienage 
in  every  other,  but  for  a  provision  in  the  compacts  into  which  they 
entered  whereby  that  consequence  was  avoided.  The  articles  adopted 
during  the  Revolution  formed  essentially  a  league  for  mutual  protection 
against  external  force  ;  but  in  passing  them  it  was  felt  to  be  necessary 
to  secure  a  community  of  intercourse  wdiich  would  not  necessarily  obtain 
even  among  closely  allied  States.  This  was  effected  by  the  fourth  article 
of  that  instrument,  which  declared  that  the  free  inhal)itants  of  each  of 
the  States  (paupers,  vagabonds,  and  fugitives  from  justice  excepted) 


CHAP.  IV.]  LEMMON    V.    THE  PEOPLE.  503 

should  be  entitled  to  all  privileges  and  immunities  of  free  citizens  in 
the  several  States,  and  tliat  the  people  of  each  State  should  have  free 
ingress  and  egress  to  and  from  any  other  State,  and  should  enjo}' 
therein  all  the  privileges  of  trade  and  commerce,  subject  to  the  same 
duties,  impositions  and  restrictions  as  tlie  inhabitants  thereof,  respec- 
tivel}'.  The  Constitution  organized  a  still  more  intimate  union,  consti- 
tuting the  States,  for  all  external  purposes  and  for  certain  enumerated 
domestic  objects,  a  single  nation  ;  but  still  the  principle  of  State  sover- 
cignt}'  was  retained  as  to  all  subjects,  except  such  as  were  embraced  in 
the  delegations  of  power  to  the  general  government  or  prohibited  to  the 
States.  The  social  status  of  the  people,  and  their  personal  and  relative 
rights  as  respects  each  other,  the  detinition  and  arrangements  of  pro- 
perty, were  among  the  reserved  powers  of  the  States.  The  provision 
conferring  rights  of  citizenship  upon  the  citizens  of  every  State  in  every 
other  State,  was  inserted  substantiall}'  as  it  stood  in  the  Articles 
of  Confederation.  The  question  now  to  be  considered  is,  how  far  the 
State  jurisdiction  over  the  subjects  just  mentioned  is  restricted  by  the 
urovision  we  are  considering ;  or,  to  come  at  once  to  the  precise  point 
in  controversy,  whether  it  obliges  the  State  oovernments  to  recognize, 
in  any  way,  within  their  own  jurisdiction,  the  prouertv  in  slaves  wliich 
the  citizens  of  States  in  which  slavery  prevails  may  lawfully  clai m 
within  their  own  States  —  beyond  the  case  of  fugitive  slaves.  The 
language  is  that  they  shall  have  the  privileges  and  immunities  of 
citizens  in  the  several  States.  In  my  opinion  the  meaning  is,  that  in  a 
given  State,  every  citizen  of  every  other  State  shal  1  have  the  same 
privileges  and  immunities  — that  is,  the  same  rights  —  which  the  citizens 
of  that  State  possess.  In  the  first  place,  they  are  not  to  be  subjected 
to  any  of  the  disabilities  of  alienage.  The}'  can  hold  property  by  the 
same  titles  by  which  every  other  citizen  may  hold  it,  and  by  no  other. 
Again,  any  discriminating  legislation  which  should  place  them  in  a 
worse  situation  than  a  proper  citizen  of  the  particular  State  would  be 
unlawful.  But  the  clause  has  nothing  to  do  with  the  distinctions 
founded  on  domicil.  A  citizen  of  Virginia,  having  his  home  in  that 
State,  and  never  having  been  within  the  State  of  New  York,  has  the 
same  rights  under  our  laws  which  a  native-born  citizen,  domiciled  else- 
where, would  have,  and  no  other  rights.  Either  can  be  the  proprietor 
of  property  here,  but  neither  can  claim  any  rights  which  under  our  laws 
belong  only  to  residents  of  the  State.  But  where  the  laws  of  the  sev- 
eral States  differ,  a  citizen  of  one  State  asserting  rights  in  another, 
must  claim  them  according  to  the  laws  of  the  last-mentioned  State, 
not  according  to  those  which  obtain  in  his  own. 

The  position  that  a  citizen  carries  with  him,  into  every  State  into 
which  he  may  go,  the  legal  institutions  of  the  one  in  which  he  was  born. 
cannot  be  snpported.  A  very  little  reflection  will  show  the  fallacy  of 
the  idea.  Our  laws  declare  contracts  depending  nyion  games  of  chance 
or  skill,  lotteries,  wagering  policies  of  insurance,  bargains  for  more 
than  7  per  cent  per  annum  of  interest,  and  many  others,  void .     In_ 


504  LEMMON   V.   THE   PEOPLE.  [CHAP.  IV. 

other  States  such  contracts,  or  some  of  tlicm,  may  be  lawful.  But  np 
oue  would  contend  that  if  made  withhi  this  State  by  a  citizen  oF  anuthcr 
State  where  they  would  haye  been  lawful,  they  would  be  enforced  in  our 
courts.  Certain  of  them,  if  made  in  another  State  and  in  conformity 
witlv  the  laws  there,  would  be  executed  by  our  tribunals  upon  the  prin- 
ciples of  comity  ;  and  the  case  would  be  the  same  if  they  were  made  in 
Europe  or  in  any  other  foreign  country.  The  clause  has  nothing  to  do 
with  the  doctrine  of  international  comity.  That  doctrine,  as  has  been 
remarked,  depends  upon  the  usage  of  civilized  nations  and  the  pre- 
sumed assent  of  the  legislative  anthorit}'  of  the  particular  State  in 
which  the  right  is  claimed  ;  and  an  express  denial  of  the  right  by  that 
authority  is  decisive  against  the  claim.  How  then,  is  the  case  of  the 
appellant  aided  by  the  provision  under  consideration  ? 

The  legislature  has  declared,  in  effect,  that  no  person  shall  bringf  a  slgye 
into  this  State,  eyen  in  the  course  of  a  journey  between  two  slaAchold- 
ino-  States^  and  tliat  if  lie  does,  the  slave  shall  be  free.  Our  own  citi- 
zens are  of  course  bound  by  this  regulation.  If  the  owner  of  these 
slaves  is  not  in  like  manner  bound  it  is  because,  in  her  quality  of  citizen 
of  another  State,  she  has  rights  superior  to  those  of  an}'  citizen  of  New 
York,  and  because,  in  coming  here,  or  sending  her  slaves  here  for  a 
temporary  purpose,  she  has  brought  with  her,  or  sent  with  them,  the 
laws  of  Virginia,  and  is  entitled  to  have  those  laws  enforced  in  the 
courts,  notwithstanding  the  mandate  of  our  own  laws  to  the  coutrarj'. 
But  the  position  of  the  appellant  proves  too  much.  The  privileges  and 
immunities  secured  to  the  citizens  of  each  State  bj'  the  Constitution  are 
not  limited  by  time,  or  by  the  purpose  for  which,  in  a  particular  case, 
they  ma}'  be  desired,  but  are  permanent  and  absolute  in  their  character. 
Hence,  if  the  appellant  can  claim  exemption  from  the  operation  of  the 
statute  on  which  the  respondent  relies,  on  the  ground  that  she  is  a 
citizen  of  a  State  where  slavery  is  allowed,  and  that  our  courts  are 
obliged  to  respect  the  title  which  those  laws  confer,  she  may  retain 
slaves  here  durinof  her  i^leasure  ;  and,  as  one  of  the  chief  attributes  of 
property  is  the  power  to  use  it,  and  to  sell  or  dispose  of  it,  I  do  not 
see  how  she  could  be  debarred  of  these  rights  within  our  iarisdlcLion  as 
long  as  she  may  choose  to  exercise  them.  She  could  not,  perhaps,  sell 
them  to  a  citizen  of  New  York,  who  would  at  all  events  be  bound  by 
our  laws,  but  any  other  citizen  of  a  slave  State  —  who  would  equally 
bring  with  him  the  immunities  and  privileges  of  his  own  State  —  might 
lawfully  traffic  in  the  slave  property.  But  my  opinion  is  that  she  has 
n o  more  right  to  the  protection  of  this  property  than  one  of  the  citizen s 
of  this  State  would  have  upon  bringing  them  here  under  the  same  cir- 
cumstances, and  that  the  clause  of  the  Constitution  referred  to  has  no 
application  to  the  case.  I  concede  that  this  clause  gives  to  citizens  of 
each  State  entire  freedom  of  intercourse  with  every  other  State,  and 
that  any  law  which  should  attempt  to  deny  them  free  ingress  or  egress 
would  be  void.  But  it  is  citizens  only  who  possess  these  rights,  and 
slaves  certainly  are  not  citizens.     Even  free  negroes,  as  is  well  known, 


CHAr.  IV.]  LEMMON   V.   THE  PEOPLE.  505 

have  been  alleged  not  to  possess  that  quality.  In  Moore  v.  The  State 
of  Illinois,  already  referred  to,  the  Supreme  Court  of  the  United  States, 
in  its  published  opinion,  declared  that  the  States  retained  the  power  to 
forbid  the  introduction  into  their  territory  of  paupers,  criminals  or  fugi- 
tive slaves.  The  case  was  a  conviction  under  a  statute  of  Illinois, 
making  it  penal  to  harbor  or  secrete  an}-  negro,  mulatto  or  person  of 
color  being  a  slave  or  servant  owing  service  or  labor  to  an}'  other 
person.  The  indictment  was  for  secreting  a  fugitive  slave  who  had  fled 
from  his  owner  in  Missouri.  The  owner  had  not  intervened  to  reclaim 
him  so  as  to  bring  the  fugitive  law  into  operation,  and  the  case  was 
placed  by  the  court  on  the  ground  that  it  was  within  the  legitimate 
power  of  State  legislation,  in  the  promotion  of  its  policy,  to  exclude  an 
unacceptable  population.  I  do  not  at  all  doubt  the  right  to  exclude  a 
slave  as  I  do  not  consider  him  embraced  under  the  provision  securing 
a  common  citizenship ;  but  it  does  not  seem  to  me  clear  that  one  Avho 
is  truly  a  citizen  of  another  State  can  be  thus  excluded,  though  he  may 
l2ii_a  pauper jDr_a_crijiiinal,  unless  he  be  a  fusitive  from  justice.  The 
fourth  article  of  confederation  contained  an  exception  to  the  provision 
for  a  common  citizenship,  excluding  from  its  benefits  paupers  and 
vagabonds  as  well  as  fugitives  from  justice ;  but  this  exception 
was  omitted  in  the  corresponding  provision  of  the  Constitution. 
If  a  slave  attempting  to  come  into  a  State  of  his  own  accord  can 
be  excluded  on  the  ground  mentioned,  namely,  because  as  a  slave 
he  is  an  unacceptable  inhabitant,  as  it  is  very  clear  he  may  be,  it 
would  seem  to  follow  that  he  might  be  expelled  if  accompanied  by 
his  master.  It  might,  it  is  true,  be  less  mischievous  to  permit  the 
residence  of  such  a  person  when  under  the  restraint  of  his  owner ; 
but  of  this  the  legislature  must  judge.  But  it  is  not  the  right  of  the 
slave  but  of  the  master  which  is  supposed  to  be  protected  under  the 
clause  respecting  citizenship.  The  answer  to  the  claim  in  that  aspect 
has  been  alread}'  given.  It  is  that  the  owner  cannot  lawfulh'  do  any- 
thing which  our  laws  do  not  pej-mit  to  be  done  b}'  one  of  our  own 
citizens ;  and  as  a  citizen  of  this  State  cannot  bring  a  slave  within  its 
limits  except  under  the  condition  that  he  shall  immediately  become 
free,  the  owner  of  these  slaves  could  not  do  it  without  involving  herself 
in  the  same  consequences.  .  .  . 

Upon  the  whole  case,  I  have  come  to  the  conclusion  that  there  is 
nothing  in  the  National  Constitution  or  the  laws  of  Congress  to  pre- 
clude the  State  judicial  authorities  from  declaring  these  slaves  tluis 
in  trod  uccd  into  the  territory  of  this  State,  free,  and  setting  them  at  lib- 
erty, according  to  the  direction  of  the  statute  referred  to.  For  the 
foregoing  reasons,  I  am  in  favor  of  affirming  the  judgment  of  the 
Supreme  Court. 

[The  concurring  opinion  of  Wright,  J.,  and  the  dissenting  opinion 
of  Clerke,  J.,  are  omitted.  With  the  first  two  judges  aliove  named 
concurred  Davies,  Bacon,  and  Welles,  JJ.  ;  Clekke,  J.,  and  Comstock, 
C.  J.,  dissenting,  and  Selden,  J.,  doubting.] 


506  UNITED   STATES   V.    KHODES.  [CHAP.  IV. 

,     NOTE. 

See,  at  this  point,  the  amendments  to  the  Constitution  of  the  United 
States,  XIII.-XV.  uiclusive,  ante,  pp.  413,  414.  Compare  Pomero}', 
Const.  Law  (Bennett's  ed.),  ss.  23.1-239,  and  2  Story,  Const.  Law, 
SB.  1959-1963,  an  addition  b}-  Judge  Cooley. 


UNITED   STATES   v.   RHODES. 

Circuit    Court   of    the    United    States,    District    of    Kentucky. 

18G6. 
[1  Abbott,  U.  S.  28.] 

Motion  in  arrest  of  judgment. 

SwAYNE.  J.  This  is  a  prosecution  under  the  Act  of  Congress  of  the 
9th  of  April,  1866,  entitled  "  An  Act  to  protect  all  Persons  in  the  United 
States  in  their  Civil  Rights,  and  to  furnish  the  Means  for  their  Vindica- 
tion." The  defendants  having  been  found  guilt}'  b}'  a  juiy,  the  case  is 
now  before  us  upon  a  motion  in  arrest  of  judgment. 

Three  grounds  are  relied  upon  in  support  of  the  motion.  It  is  in- 
sisted :  — 

I.  That  the  indictment  is  fatall}'  defective. 

II.  That  the  case  which  it  makes,  or  was  intended  to  make,  is  not 
within  the  Act  of  Congress  upon  which  it  is  founded. 

III.  That  the  Act  itself  is  unconstitutional  and  void. 

I.  As  to  the  indictment,  if  either  count  be  sufficient,  it  will  support 
the  judgment  of  the  court  upon  the  verdict.  Our  attention  will  be  con- 
fined to  the  second  count.  That  count  alleges  that  the  defendants,  be- 
ing white  persons,  "  on  the  1st  of  May,  1866,  at  the  count}'  of  Nelson, 
in  the  State  and  District  of  Kentucky,  at  the  hour  of  eleven  of  the  clock 
in  the  night  of  the  same  da}',  feloniouslj'  and  burglariously  did  break 
and  enter  the  dwelling-house  there  situate  of  Nancy  Talbot,  a  citizen 
of  the  United  States  of  the  African  race,  having  been  born  in  the 
United  States,  and  not  subject  to  an}'  foreign  power,  who  was  then  and 
there,  and  is  now,  denied  the  right  to  testify  against  the  said  defend- 
ants, in  the  courts  of  the  State  of  Kentucky,  and  of  the  said  county  of 
Nelson,  with  intent  the  goods  and  chattels,  moneys  and  property  of  the 
said  Nancy  Talbot,  in  the  said  dwelling-house  then  and  there  being, 
feloniously  and  burglariously  to  steal,  take,  and  carry  away,  contrary  to 
the  statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States." 

The  objection  urged  against  this  count  is,  that  it  does  not  aver  that 
"  white  citizens  "  enjoy  the  right  which  it  is  alleged  is  denied  to  Nancy 
Talbot.  This  fact  is  vital  in  the  case.  Without  it  our  jurisdiction  can- 
not be  maintained.  It  is  averred  that  she  is  a  citizen  of  the  United 
States,  of  the  African  race,  and  that  she  is  denied  the  right  to  testify 
against  the  defendants,  they  being  white  persons.     Section  669  of  the 


I 


p'yCxA^    ^^^  CU_y*_>«_-o--^^o       tfv-^    "UU.^ 


CHAP.  IV.]  UNITED    STATES   V.   RHODES.  507 

Code  of  Civil  Practice  of  Kentucky  gives  tliis  right  to  white  persons 

under  the  same  circumstances.     This  is  a  public  statute,  and  we  are 

bound  to  take  judicial  cognizance  of  it.     It  is  never  necessary  to  set 

forth  matters  of  law  in  a  criminal  pleading.     The  indictment  is,  in  legal 

effect,  as  if  it  averred  the  existence  and  provisions  of  the  statute.    The 

enjoyment  of  the  right  in  question  by  white  citizens  is  a  conclusion  of 

law  from  the  facts  stated.     Averment  and  proof  could  not  bring  it  mto 

the  case  more  effectually  for  any  puriwse  than  it  is  there  already.     1     ^ 

Chitt.  Cr.  Law,  188  ;  2  Bos.  and  P.  127  ;  2  Leach,  942  ;  1  Bishop  Crim.  -if     rf^ 

Pro.,  §§  52,  53.  ^^ 

This  right  is  one  of  those  secured  to  Nancy  Talbot  by  the  first  section     tJnMi. 
of  this  Act.     The  objection  to  this  count  cannot  be  sustained.  /UAA/^Tv« 

II.    Is  the  offence  charged,  within  the  statute?  Ax/JoAnX' 

The  first  section  enacts  :  "  That  all  persons  born  in  the  United  States,    \Y^, 
and  not  subject  to  any  foreign  power,  excluding  Indians  not  taxed,  are     -ctAX^ 
hereby  declared  to  be  citizens  of  the  United  States  ;  and  such  citizens,  JjJo-m 
of  every  race  and  color,  without  regard  to  any  previous  condition  of   (JtiJiiuj^/i. 
slavery,    .    .    .    shall  have  the  same  right  in  every  State    and  Terri-  d^ 

tory  in  the  United  States,  to  make  and  enforce  contracts,  to  sue,  be   J)  Xm.  'vi 
parties,  and  give  evidence,  to  inherit,  purchase,  sell  and  convey  real  and    ^ 
personal  property  :  and  to  full  and  equal  benefit  of  all  laws  and  proceed-  J^  £aa^*-«- 
ings  for  the  security  of  person  and  property  as  is  enjoyed  by  white  cit-  jlaXtA, 
izens,  and  shall  be  subject  to  like  punishment,  pains,  and  penalties,  and 
to  none  other,  any  law,  statute,  ordinance,  regulation,  or  custom,  to  the    ^^^v^aua 
contrary  notwithstanding."  -t^yKiAjCta. 

The  second  section  provides  :  "  That  any  person,  who  under  color  of  . 
any  law,  statute,  ordinance,  regulation,  or  custom,  shall  subject,  or  cause 
to  be  subjected,  any  inhabitant  of  any  State  or  Territory  to  the  depriva-   /^i-AAM   ^ 
tion  of  anj^  right  secured  or  protected  by  this  Act,  or  to  different  punish-    /i^A^^^(ijt> 
ment,  pains,  or  penalties  on  account  of  such  person  having  at  any  time     d 
been  held  in  the  condition  of  slaver}-,   ...  or  by  reason  of  his  color    ^:/<<  (ji^^ 
or  race,  than  is  prescribed  for  the  punishment  of  white  persons,  shall      / 
be  deemed  guilty  of  a  misdemeanor,"  &c.  '^^^^ 

The  third  section  declares  :  "That  the  District  Courts  of  the  United    o^cLkK^^ 
Slates  within  their  respective  districts,  shall  have,  exclusively  of  the   Jlxq/Aj^aA. 
courts  of  the  several  States,  cognizance  of  all  crimes  and  offences  com-        /j^ 
mitted  against  the  provisions  of  this  Act,  and  also,  concurrentl}-  with    wy? 
the  Circuit  Courts  of  the  United  States,  of  all  causes,  civil  and  criminal,  cfl^'^^'^- 
affecting  persons  who  are  denied  or  cannot  enforce  in  the  courts  ov    yvuUAA 
judicial  tribunals  of  the  State  where  they  may  be,  an}'  of  the  rights  se-     i~J.(/u,  )(tLi 
cured  to  them  by  the  first  section  of  this  Act ;  and  if  any  suit  or  prose-  ^         " 
cution,  civil  or  criminal,  shall  be  commenced  in  any  State  court  against  t*^  '^^^J' 
such   person,    for   any    cause   whatsoever-,  .  .  .  such   defendant   shall  ^^^^  o^_  {^^ 
have  the  right  to  remove  such  cause  for  trial  to  the  proper  District  or  _jj       j 
Circuit  Court  in  the  manner  prescribed  by  the  Act  relating  to  habeas  Cl>^  "v<^ 
corpus,  and  regulating  judicial  proceedings  in  certain  cases,  approved  XjCtLy^A^c^ 
March  3,  1863,  and  all  Acts  amendatory  thereof."  ...  "^ 


508  UNITED   STATES   V.    RHODES.  [CHAP.  IV. 

"When  the  Act  was  passed  there  was  no  State  where  ample  provision 
did  not  exist  for  the  trial  and  punishment  of  persons  of  color  for  all 
offences  ;  and  no  locality  where  there  was  any  ditllculty  in  enforcing  the 
law  against  them.  There  was  no  complaint  upon  the  subject.  The  aid 
of  Congress  was  not  invoked  in  that  direction.  It  is  not  denied  that 
the  first  and  second  sections  \\ere  designed  solely  for  their  benefit.  The 
third  section,  giving  the  jurisdiction  to  which  this  question  relates,  pro- 
vides expressly  that  if  sued  or  prosecuted  in  a  State  court  under  the 
circumstances  mentioned,  the}'  ma}-  at  once  have  the  cause  certified  into 
a  proper  Federal  court.  .  .  . 

It  is  incredible  that  all  this  machiner}-,  including  the  agency  of  the 
freedmen's  bureau,  would  have  been  provided,  if  the  intention  were  to 
limit  the  criminal  jurisdiction  conferred  by  the  third  section  to  colored 
persons,  and  exclude  all  white  persons  from  its  operation. 

The  title  of  the  Act  is  in  harmon}'  with  this  view  of  the  subject. 

The  construction  contended  for  would  obviousl}'  defeat  the  main  object 
which  Congress  had  in  view  in  passing  the  Act,  and  produce  results  the 
opposite  of  those  intended. 

The  difficulty  was  that  where  a  white  man  was  sued  b}-  a  colored  man, 
or  was  prosecuted  for  a  crime  against  a  colored  man,  colored  witnesses 
were  excluded.  This  in  manj'  cases  involved  a  denial  of  justice. 
Crimes  of  the  deepest  dye  were  committed  by  white  men  with  impunity. 
Courts  and  juries  were  frequently  hostile  to  the  colored  man,  and  admin- 
istered justice,  both  civil  and  criminal,  in  a  corresponding  spirit.  Con- 
gress met  these  evils  by  giving  to  the  colored  man  everywhere  the  same 
rio"ht  to  testify  "  as  is  enjoyed  b}-  white  citizens,"  abolishing  the  distinc- 
tion between  white  and  colored  witnesses,  and  by  giving  to  tlie  courts 
of  the  United  States  jurisdiction  of  all  causes,  civil  and  criminal,  which 
concern  him,  wherever  the  right  to  testify  as  if  he  were  white  is  denied 
to  him  or  cannot  be  enforced  in  the  local  tribunals  of  the  State. 

The  context  and  the  rules  of  interpretation  to  be  applied  permit  of  no 
other  construction.  Such  was  clearly  the  intention  of  Congress,  and 
that  intention  constitutes  the  law. 

This,  with  the  provision  which  authorizes  colored  defendants  in  the 
State  courts  to  have  their  causes  certified  into  the  Federal  courts,  and 
the  other  provisions  referred  to,  renders  the  protection  which  Congress. 
has  given  as  effectual  as  it  can  well  be  made  by  legislation.  It  is  one 
system,  all  the  parts  looking  to  the  same  end. 

Where  crime  is  committed  with  impunity  by  any  class  of  persons, 
society,  so  far  as  they  are  concerned,  is  reduced  to  that  condition  of 
barbarism  which  compels  those  unprotected  by  other  sanctions  to  rely 
upon  physical  force  for  the  vindication  of  their  natural  rights.  There  is 
no  other  remedy,  and  no  other  securit}'. 

It  is  said  there  can  be  no  such  thing  as  a  right  to  testify,  and  that  if 
Congress  conferred  it  by  this  Act,  a  cloud  of  colored  witnesses  may 
appear  in  every  case  and  claim  to  exercise  it. 

There  is  no  force  in  this  argument.     The  statute  is  to  be  construed 


CHAP.  IV.]  UNITED   STATES   V.    RHODES.  509 

reasonabl}'.  Like  the  right  to  sue  and  to  contract,  it  is  to  be  exercised 
only  on  proper  occasions  and  within  proper  limits.  Every  right  given 
is  to  be  the  same  "as  is  enjo3'ed  by  white  citizens." 

It  is  urged  that  this  is  a  penal  statute,  and  to  be  construed  strictly. 
We  regard  it  as  remedial  in  its  character,  and  to  be  construed  liberally, 
to  carry  out  the  wise  and  beneficent  purposes  of  Congress  in  enacting 
it.     Bacon's  Abr.- tit.  Statute,  1. 

But  if  the  Act  were  a  penal  statute,  the  canons  of  interpretation  to  be 
applied  would  not  affect  the  conclusion  at  which  we  have  arrived. 
United  States  v.  Wiltherger,  5  Wheat.  96  ;  Commonwealth  v.  Lowry, 
S  Pick.  374;  United  States  v.  Horris,  14  Pet.  475  ;  United  States  v. 
Wi?in,  3  Sumn.  211  ;  1  Bish.  Cr.  Law,  236. 

This  objection  to  the  indictment  cannot  avail  the  defendants. 

III.    Is  the  Act  warranted  b}'  the  Constitution? 

The  first  eleven  amendments  of  the  Constitution  were  intended  to  limit 
the  powers  of  the  government  which  it  created,  and  to  protect  the  peo- 
ple of  the  States.  Though  earnestly  sustained  by  the  friends  of  the 
Constitution,  the}'  originated  in  the  hostile  feelings  with  which  it  was 
regarded  by  a  large  portion  of  the  people,  and  were  shaped  by  the  jeal- 
ous policy  which  those  feelings  inspired.  The  enemies  of  the  Constitu- 
tion saw  many  perils  of  evil  in  the  centre,  but  none  elsewhere.  They 
feared  tyranny  in  the  head,  not  anarchy  in  the  members,  and  they  took 
their  measures  accordingh'.  The  friends  of  the  Constitution  desired  to 
obviate  all  just  grounds  of  apprehension,  and  to  give  repose  to  the  pub- 
lic mind.  It  was  important  to  unite,  as  far  as  possible,  the  entire  people 
in  support  of  the  new  system  which  had  been  adopted.  Thej'  felt  the 
necessit}'  of  doing  all  in  their  power  to  remove  every  obstacle  in  the 
wa\'  of  its  success.  The  most  momentous  consequences  for  good  or  evil 
to  the  country'  were  to  follow  in  the  results  of  the  experiment.  Hence 
the  spirit  of  concession  which  animated  the  Convention,  and  hence  the 
adoption  of  these  amendments  after  the  work  of  the  Convention  was 
done  and  had  been  approved  bj-  the  people. 

The  Twelfth  Amendment  grew  out  of  the  contest  between  Jefferson 
and  Burr  for  the  presidency. 

The  Thirteenth  Amendment  is  the  last  one  made.  It  trenches  directl}- 
upon  the  power  of  the  States  and  of  the  people  of  the  States.  It  is  the 
first  and  only  instance  of  a  change  of  this  character  in  the  organic  law. 
It  destroyed  the  most  important  relation  between  capital  and  labor  in  all 
the  States  where  slaver}'  existed.  It  affected  deeply  the  fortunes  of  a 
large  portion  of  their  people.  It  struck  out  of  existence  millions  of 
propert}'.  The  measure  was  the  consequence  of  a  strife  of  opinions, 
and  a  conflict  of  interests,  real  or  imaginary,  as  old  as  the  Constitution 
itself.  These  elements  of  discord  grew  in  intensit}'.  Their  violence  was 
increased  by  the  throes  and  convulsions  of  a  civil  war.  The  impetuous 
vortex  finally  swallowed  up  the  evil,  and  with  it  forever  the  power  to 
restore  it.  Those  who  insisted  upon  the  adoption  of  this  amendment 
were  animated  by  no  spirit  of  vengeance.     They  sought  security  against 


510  UNITED    STATES   V.    RHODES.  [CHAP.  IV. 

ihe  recurrence  of  a  sectional  conflict.  They  felt  that  much  was  clue  to 
the  African  race  for  the  part  it  liad  borne  during  the  war.  They  were 
also  im[)clled  by  a  sense  of  right  and  by  a  strong  sense  of  justice  to  an 
unoflfending  and  long-suft'ering  people.  These  considerations  nuist  not 
be  lost  sight  of  when  we  come  to  exannne  the  amendment  in  order  to 
ascertain  its  proper  construction. 

The  Act  of  Congress  confers  citizenship.  Who  are  citizens,  and  what 
are  their  rights?  The  Constitution  uses  the  words  "citizen"  and 
"natural-born  citizens;"  but  neither  that  instrument  nor  an}' Act  of • 
Congress  has  attempted  to  define  their  meaning.  British  jurispru- 
dence, whence  so  much  of  our  own  is  drawn,  throws  little  light  upon  the 
subject.  ... 

All  persons  born  in  the  allegiance  of  the  king  are  natural-born  sub- 
jects, and  all  persons  born  in  the  allegiance  of  the  United  States  are 
natural-born  citizens.  Birth  and  allegiance  go  together.  Such  is  the 
rule  of  the  common  law,  and  it  is  the  common  law  of  this  country-,  as 
■well  as  of  England.  There  are  two  exceptions,  and  onh-  two,  to  the 
universalit}'  of  its  application.  The  children  of  ambassadors  are  in 
theor}'  born  in  the  allegiance  of  the  powers  the  ambassadors  represent, 
and  slaves,  in  legal  contemplation,  are  propert}',  and  not  persons.  2 
Kent  Com.  1  ;  Calven's  Case,  7  Coke,  1 ;  4  Black.  Com.  366  ;  Lt/nch  v. 
Clark,  1  Sandf.  Ch.  139. 

The  common  law  has  made  no  distinction  on  account  of  race  or  color. 
None  is  now  made  in  England,  nor  in  any  other  Christian  countr\'  of 
Europe. 

The  fourth  of  the  Articles  of  Confederation  declared  that  the  "  free 
inhabitants  of  each  of  these  States,  paupers,  vagabonds,  and  fugitives 
from  justice  excepted,  shall  be  entitled  to  all  the  privileges  and  immu- 
nities of  free  citizens  in  the  United  States,"  &c.  On  the  25tb  of  June, 
1778,  -when  these  Articles  were  under  consideration  by  the  Congress, 
South  Carolina  moved  to  amend  this  fourth  Article  by  inserting  after  the 
"word  "  free,"  and  before  the  word  "  inliabitants,"  the  word  "white." 
Two  States  voted  for  the  amendment  and  eight  against  it.  The  vote  of 
one  was  divided.  jScoft  v.  Sanford,  19  How.  575.  "When  the  Consti- 
tution was  adopted,  free  men  of  color  were  clothed  with  the  franchise  of 
voting  in  at  least  five  States,  and  were  a  part  of  the  people  whose  sanc- 
tion breathed  into  it  the  breath  of  life.  Scott  v.  Sanford,  19  How.  573  ; 
State  V.  Manuel,  2  Dev.  &  Batt.  24,  25. 

"  'Citizens'  under  our  Constitution  and  laws  means  free  inhabitants 
born  within  the  United  States  or  naturalized  under  the  laws  of  Con- 
gress."    1  Kent  Com.  292,  note. 

We  find  no  warrant  for  the  opinion  that  this  great  principle  of  the 
common  law  has  ever  been  changed  in  the  United  States.  It  has  alwaj-s 
obtained  here  witli  the  same  vigor,  and  subject  only  to  the  same  excep- 
tions, since  as  before  the'  Revolution. 

It  is  further  said  in  the  note  in  1  Kent's  Commentaries,  before  referred 
to:  — 


CHAP.  IV.]  UNITED   STATES   V.    RHODES.  511 

"If  a  slave  bom  in  the  United  States  be  manumitted  or  otlierwise 
lawfully  discharged  from  bondage,  or  if  a  black  man  born  in  the  United 
States  becomes  free,  he  becomes  tiienceforward  a  citizen,  but  under  such 
disabilities  as  the  laws  of  the  several  States  may  deem  it  expedient  to 
prescribe  to  persons  of  color." 

In  the  case  of  /State  v.  Mamiel,  suj^ra,  it  was  remarked  :  — 

"  It  has  been  said  that,  by  the  Constitution  of  the  United  States,  the 
power  of  naturalization  has  been  conferred  exclusively  upon  Congress, 
and  therefore  it  cannot  be  competent  for  any  State  by  its  municipal  reg- 
ulations to  make  a  citizen.  But  what  is  naturalization  ?  It  is  the  re- 
moval of  the  disabilities  of  alienage.  Emancipation  is  the  removal  of 
the  incapacity  of  slavery.  The  latter  depends  wholly  upon  the  internal 
regulations  of  the  State.  The  former  belongs  to/he  government  of  the 
United  States.     It  would  be  dangerous  to  confound  them."     p.  25. 

This  was  a  decision  of  the  Supreme  Court  of  North  Carolina,  made 
in  the  3^ear  1836.  The  opinion  was  delivered  by  Judge  Gaston.  He 
was  one  of  the  most  able  and  learned  judges  this  country  has  produced. 
The  same  court,  in  1848,  Chief  Justice  Ruffin  delivering  tlie  opinion, 
referred  to  the  case  of  tState  v.  Manuel,  and  said  :  — 

''  That  case  underwent  a  very  laborious  investigation  b}'  both  the  Bench 
and  the  Bar.  The  case  was  brought  Iiere  by  appeal,  and  was  felt  to  be 
one  of  very  great  importance  in  principle.  It  was  considered  with  an 
anxiety  and  care  worth}'  of  the  principle  involved,  and  which  give  it  a 
controlling  influence  upon  all  questions  of  similar  nature."  Utate  v. 
JSFewcomh,  5  Ired.  253. 

We  cannot  deny  the  assent  of  our  judgment  to  the  soundness  of  the 
proposition  that  the  emancipation  of  a  native-born  slave  by  removing 
the  disabilit}'  of  slavery  made  liim  a  citizen.  If  these  views  be  correct, 
the  provision  in  the  Act  of  Congress  conferring  citizenship  was  unneces- 
sary, and  is  inoperative.  Granting  this  to  be  so,  it  was  well,  if  Con- 
gress had  the  power,  to  insert  it,  in  order  to  prevent  doubts  and  diffei'- 
ences  of  opinion  which  might  otherwise  have  existed  upon  the  subject. 
We  are  aware  that  a  majority  of  the  court,  in  the  case  of  Scott  v.  San- 
ford^  arrived  at  conclusions  different  from  those  we  have  expressed. 
But  in  our  judgment  these  points  were  not  before  them.  They  decided 
that  the  whole  case,  including  the  agreed  facts,  was  open  to  their  exam- 
ination, and  tliat  Scott  w^as  a  slave.  This  central  and  controlling  fact 
excluded  all  other  questions,  and  what  was  said  upon  them  by  those  of 
the  majorit}',  with  whatever  learning  and  abilitj'  the  argument  was  con- 
ducted, is  no  more  binding  upon  this  court  as  authority  than  the  views 
of  the  minority  upon  the  same  subjects.  Carroll  v.  Carroll,  16  How. 
287. 

The  fact  that  one  is  a  subject  or  citizen  determines  nothing  as  to  his 
rights  as  such.  The}'  vary  in  different  localities  and  according  to  cir- 
cumstances. 

Citizenship  has  no  necessary  connection  with  the  franchise  of  voting, 
eligibility  to  office,  or  indeed  with  any  other  rights,  civil  or  political. 


512 


UNITED   STATES   V.    RHODES. 


[chap.  IY. 


"Women,  minors,  and  persons  non  comjjos  are  citizens,  and  not  the  less 
so  on  account  of  their  disabilities.  In  Eiighmd,  not  to  advert  to  the 
various  local  regulations,  the  new  reform  bill  gives  the  right  of  voting 
for  members  of  Parliament  to  about  eight  hundred  thousand  persons 
from  whom  it  was  before  withheld.  There,  the  subject  is  wdioll}'  within 
the  control  of  Parliament.  Here,  until  the  Thirteenth  Amendment  was 
adopted,  the  power  belonged  entireh*  to  the  States,  and  they  exercised 
it  without  question  from  any  quarter,  as  absolutely  as  if  the3'  were  not 
members  of  the  Union. 

Tiie  first  ten  amendments  to  the  Constitution,  which  are  in  the  nature 
of  a  bill  of  rights,  apply  only  to  the  national  government.  They 
were  not  intended  to  restrict  the  power  of  the  States.  Barroios  v. 
Mayor,  &c.,  7  Pet.  247;  Withers  v.  Backley,  20  How.  84;  3Iurphy 
V.  Feople,  2  Cow.  81§. 

Oar  attention  has  been  called  to  several  treaties  by  which  Indians 
were  made  citizens  ;  to  those  by  which  Louisiana,  Florida,  and  California 
were  acquired,  and  to  the  Act  passed  in  relation  to  Texas.  All  this  was 
done  under  the  war  and  treaty  making  powers  of  the  Constitution,  and 
those  which  authorize  the  national  government  to  regulate  the  territory 
and  other  property  of  the  United  States,  and  to  admit  new  States  into 
the  Union.  American  Ins.  Co.x.  Canter,  1  Pet.  511 ;  Cross  \.  Harri- 
son, 16  How.  164 ;  2  Story  Const.  158. 

These  powers  are  not  involved  in  the  question  before  us,  and  it  is  not 
necessary  particularly  to  consider  them.  A  few  remarks,  however,  in 
this  connection  will  not  be  out  of  place.  A  treaty  is  declared  by  the 
Constitution  to  be  the  "  law  of  the  land."  What  is  unwarranted  or  for- 
bidden by  the  Constitution  can  no  more  be  done  in  one  way  than  in  an- 
other. The  authority  of  the  national  government  is  limited,  though 
supreme  in  the  sphere  of  its  operation.  As  compared  with  the  State 
governments,  the  subjects  upon  which  it  operates  are  few  in  number. 
Its  objects  are  all  national.  It  is  one  wholly  of  delegated  powers.  The 
States  possess  all  which  they  have  not  surrendered  ;  the  government  of 
the  Union  only  such  as  the  Constitution  has  given  to  it,  expressly  or 
incidentally,  and  by  reasonable  intendment.  AVhenever  an  act  of  that 
government  is  challenged  a  grant  of  power  must  be  shown,  or  the  act  is 
void. 

"  The  power  to  make  colored  persons  citizens  has  been  actually  exer- 
cised in  repeated  and  important  instances.  See  the  treaty  with  the 
Choctaws  of  September  27,  1830,  art.  14 ;  with  the  Cherokees  of  May 
20,  1836,  art.  12;  and  the  treaty  of  Guadeloupe  Hidalgo,  of  February 
2,  1848,  art.  8."     iScott  v.  Sanford,  19  How.  486,  opinion  of  Curtis,  J. 

See,  also,  the  treaty  with  France  of  April  30,  1803,  by  which  Louisiana 
was  acquired,  art.  3  ;  and  the  treaty  with  Spain  of  the  23d  of  Februar}-, 
1819,  by  which  Florida  was  acquired,  art.  3. 

The  article  referred  to  in  the  treaty  with  France  and  in  the  treaty  with 
Spain  is  in  the  same  language.  In  both  the  phrase  "inhabitants"  is 
used.     No  discrimination  is  made  against  those,  in  whole  or  in  part,  of 


CHAP.  IV.]  UNITED    STATES   V.   IIIIODES.  513 

the  African  race.  So  in  tlie  treaty  of  Guadeloupe  Hidalgo  (articles  8 
and  9),  no  reference  is  made  to  color.  .  .  , 

This  brings  us  to  the  examination  of  the  Thirteenth  Amendment.  It 
is  as  follows  :  — 

"  Article  XIII.  Section  1.  Neither  slaver}- nor  involuntary  servitude, 
except  as  a  punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States  or  any  place  subject 
to  their  jurisdiction. 

"  Section  2.  Congress  shall  have  power  to  enforce  this  article  b}- 
appropriate  legislation." 

Before  the  adoption  of  this  amendment,  the  Constitution,  at  the  close 
of  the  enumeration  of  the  powers  of  Congress,  authorized  that  body  — 

•"To  make  all  laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all  other  powers  vested  b}'  this 
Constitution  in  the  government  of  the  United  States,  or  an}' department 
or  officer  thereof."  .  .  . 

Without  any  other  provision  than  the  first  section  of  the  amendment. 
Congress  would  have  had  authority  to  give  full  effect  to  the  abolition  of 
slavery  thereby  decreed.  It  would  have  been  competent  to  put  in 
requisition  the  executive  and  judicial,  as  well  as  the  legislative  power, 
with  all  the  energy  needful  for  that  purpose.  The  second  section  of  the 
amendment  was  added  out  of  abundant  caution.  It  authorizes  Congress 
to  select,  from  time  to  time,  the  means  that  might  be  deemed  appropri- 
ate to  the  end.  It  employs  a  phrase  which  had  been  enlightened  by 
well-considered  judicial  application.  Any  exercise  of  legislative  power 
within  its  limits  involves  a  legislative,  and  not  a  judicial  question.  It 
is  only  when  the  authority  given  has  been  clearly  exceeded,  that  the 
judicial  power  can  be  invoked.  Its  office,  then,  is  to  repress  and  annul 
the  excess  ;  beyond  that  it  is  powerless. 

We  will  now  proceed  to  consider  the  state  of  things  which  existed 
before  and  at  the  time  the  amendment  was  adopted,  the  mischiefs  com- 
plained of  or  apprehended,  and  the  remedy  intended  to  be  provided  for 
existing  and  anticipated  evils. 

When  the  late  Civil  War  broke  out,  slavery  of  the  African  race  sub- 
sisted in  fifteen  States  of  the  Union.  The  legal  code  relating  to  persons 
in  that  condition  was  everywhere  harsh  and  severe.  An  eminent  writer 
said  :  "They  cannot  take  property  by  descent  or  purchase  ;  and  all  they 
find  and  all  they  own  belongs  to  their  master.  They  cannot  make  con- 
tracts, and  they  are  deprived  of  civil  rights.  They  are  assets  for  the 
payment  of  debts,  and  cannot  be  emancipated  by  will  or  otherwise  to 
the  prejudice  of  creditors."     2  Kent  Com.  281,  282. 

In  a  note,  it  is  added  : 

"  In  Georgia,  by  an  Act  of  1829,  no  person  is  permitted  to  teach  a 
slave,  a  negro,  or  a  free  person  of  color  to  read  or  write.  So  in  Vir- 
ginia, by  a  statute  of  1830,  meetings  of  free  negroes  to  learn  reading  or 
writing  are  unlawful,  and  subject  them  to  corporal  punishment ;  and  it 
is  nnlawful  for  white  persons  to  assemble  with  free  negroes  or  slaves  to 
VOL.  r.  —  33 


514  UNITED    STATES   V.    RHODES.  [CHAP.  IV. 

teach  them  to  read  or  write.  The  prohibitor}*  Act  of  the  Legiskvture  of 
Alabama,  passed  at  the  session  of  1831-32,  relative  to  the  instruction  to 
be  given  to  the  slaves  or  free  colored  population,  or  exhortation,  or 
preaching  to  them,  or  an}-  miscliievous  inliuence  attempted  to  be  exerted 
over  them,  is  sufficiently  penal.  Laws  of  similar  import  are  presumed 
to  exist  in  the  other  slaveholding  States ;  but  in  Louisiana  the  law  on 
the  subject  is  armed  with  tenfold  severity.  It  not  only  forbids  any 
person  teaching  slaves  to  read  or  write,  but  it  declares  that  an}'  person 
using  language  in  any  public  discourse  from  the  bar,  bench,  stage,  or 
pulpit,  or  any  other  place,  or  in  any  private  conversation,  or  making  use 
of  an}'  sign  or  actions  having  a  tendency  to  produce  discontent  among 
the  free  colored  population  or  insubordination  among  the  slaves,  or  wlio 
shall  be  knowingh'  instrumental  in  bringing  into  the  State  an}'  paper, 
book,  or  pamphlet  having  a  like  tendency,  shall,  on  conviction,  be  pun- 
ishable with  imprisonment  or  death,  at  the  discretion  of  the  court." 

Slaves  were  imperfectly,  if  at  all,  protected  from  the  grossest  outrages 
by  the  whites.  Justice  was  not  for  them.  The  charities  and  rights 
of  the  domestic  relations  had  no  legal  existence  among  them.  The 
shadow  of  the  evil  fell  upon  the  free  blacks.  They  had  but  few  civil 
and  no  political  rights  in  the  slave  States.  Many  of  the  badges  of  the 
bondman's  degradation  were  fastened  upon  them.  Tlieir  condition,  like 
his,  though  not  so  bad,  was  helpless  and  hopeless.  This  is  borne  out 
by  the  passages  we  have  given  from  Kent's  Commentaries.  Further 
research  would  darken  the  picture.  The  States  had  always  claimed  and 
exercised  the  exclusive  right  to  fix  the  status  of  all  persons  living  within 
their  jurisdiction. 

On  January  1,  1863,  President  Lincoln  issued  his  proclamation  of 
emancipation.  Missouri  and  Maryland  abolished  slavery  by  tlieir  own 
voluntary  action.  Throughout  the  war  the  African  race  had  evinced 
entire  sympathy  with  the  LTnion  cause.  At  the  close  of  the  Rebellion 
two  hundred  thousand  had  become  soldiers  in  the  Union  armies.  The 
race  had  strong  claims  upon  the  justice  and  generosity  of  the  nation. 
Weighty  considerations  of  policy,  humanity,  and  right  were  superadded. 
Slavery,  in  fact,  still  subsisted  in  thirteen  States.  Its  simple  abolition, 
leaving  these  laws  and  this  exclusive  power  of  the  States  over  the  eman- 
cipated in  force,  would  have  been  a  phantom  of  delusion.  The  hostility 
of  the  dominant  class  would  have  been  animated  with  new  ardor. 
Legislative  oppression  would  have  been  increased  in  scA'crity.  Under 
the  guise  of  police  and  other  regulations  slavery- would  have  been  in 
effect  restored,  perhaps  in  a  worse  form,  and  the  gift  of  freedom  would 
have  been  a  curse  instead  of  a  blessing  to  those  intended  to  be  benefited. 
They  would  have  had  no  longer  the  protection  which  the  instinct  of 
property  leads  its  possessor  to  give  in  whatever  form  the  property  may 
exist.  It  was  to  guard  ngainst  such  evils  that  the  second  section  of  the 
amendment  was  framed.  It  was  intended  to  give  expressly  to  Congress 
the  requisite  authority,  and  to  leave  no  room  for  doubt  or  cavil  upon 
the  subject.     The  results  have  shown  the  wisdom  of  this  forecast.     Al- 


CHAP.  IV.]  UNITED   STATES   V.   RHODES.  515 

most  simultaneously  Vtitb  the  adoption  of  the  amendment  this  course  of 
legislative  oppression  was  begun.  Hence,  doubtless,  the  passage  of  the 
Act  under  consideration.  In  the  presence  of  these  facts,  who  will  say 
it  is  not  an  "  appropriate  "  means  of  carrying  out  the  object  of  the  first 
section  of  the  amendment,  and  a  necessary  and  proper  execution  of  the 
power  conferred  by  the  second?  Blot  out  this  Act  and  deny  the  consti- 
tutional power  to  pass  it,  and  the  worst  effects  of  slaver}'  might  speedily 
follow.     It  would  be  a  virtual  abrogation  of  the  amendment. 

It  would  be  a  remarkable  anomaly  if  the  national  government,  with- 
out this  amendment,  could  confer  citizenship  on  aliens  of  ever}'  race  or 
color,  and  citizenship,  with  civil  and  political  rights,  on  the  "  inhabit- 
ants "  of  Louisiana  and  Florida,  without  reference  to  race  or  color,  and 
cannot,  with  the  help  of  the  amendment,  confer  on  those  of  the  African 
race,  who  have  been  born  and  always  lived  within  the  United  States,  all 
that  this  law  seeks  to  give  them. 

It  was  passed  by  the  Congress  succeeding  the  one  which  proposed  the 
amendment.     Man}-  of  the  members  of  both  Houses  were  the  same. 

This  fact  is  not  without  weight  and  significance.  McCidloch  v. 
llaryland,  4  Wheat.  401. 

The  amendment  reversed  and  annulled  the  original  policy  of  the  Con- 
stitution, which  left  it  to  each  State  to  decide  exclusively  for  itself 
whether  slavery  should  or  should  not  exist  as  a  local  institution,  and 
what  disabilities  should  attach  to  those  of  the  servile  race  within  its 
limits.  The  whites  needed  no  relief  or  protection,  and  they  are  prac- 
tically unaffected  by  the  amendment.  The  emancipation  which  it 
wrought  was  an  act  of  great  national  grace,  and  was  doubtless  intended 
to  reach  further  in  its  effects  as  to  ever}'  one  within  its  scope,  than  the 
consequences  of  a  manumission  by  a  private  individual. 

We  entertain  no  doubt  of  the  constitutionality  of  the  Act  in  all  its 
provisions. 

It  gives  only  certain  civil  rights.  Whether  it  was  competent  for  Con- 
gress to  confer  political  rights  also,  involves  a  different  inquiry.  We 
have  not  found  it  necessary  to  consider  the  subject.' 

We  are  not  unmindful  of  the  opinion  of  the  Court  of  Appeals  of  Ken- 
tucky, in  the  case  of  Brovm  v.  Comni onv;ealth.  With  all  our  respect 
for  the  eminent  tribunal  from  which  it  proceeded,  we  have  found  our- 
selves unable  to  concur  in  its  conclusions.  The  constitutionality  of  the 
Act  is  sustained  by  the  Supreme  Court  of  Indiana,  and  the  Chief  Justice 
of  the  Court  of  Appeals  of  Maryland,  in  able  and  well-considered  opin- 
ions.    Smith  V.  Moo(Jy,  26  Ind.  299  ;  Re  A.  11.  Somers. 

We  are  happy  to  know  that  if  we  have  erred  the  Supreme  Court  of 
the  United  States  can  revise  our  judgment  and  correct  our  error. 

The  motion  is  overruled,  and  judgment  will  be  entered  upon  the 
verdict. 

Motion  overruled. 


516  SLA.UGHTER-nOUSE   CASES.  [CHAP.  IV. 


SLAUGHTER-HOUSE  CASES. 
Supreme  Court  of  the  United  States.     1873. 

[16  Wall.SG.]^ 

3Ir.  John  A.  Ccnnphell,  and  also  3Ir.  J.  Q.  A.  Felloics,  argued  the 
case  at  much  length  and  on  the  authorities,  in  behalf  of  the  plaintiffs  in 
error. 

Jlessrs.  M.  H.  Carpenter  and  J.  S.  JBlacJc  (a  brief  of  Mr.  Charles 
Allen  being  filed  on  the  same  side),  and  Mr.  T.  J.  Durante  representing 
in  addition  the  State  of  Louisiana,  contra. 

Mr.  Justice  Miller  now,  April  14,  1873,  delivered  the  opinion  of 
the  court. 

These  cases  are  brought  here  by  writs  of  error  to  the  Supreme  Court 
of  the  State  of  Louisiana.  They  arise  out  of  the  efforts  of  the  butchers 
of  New  Orleans  to  resist  the  Crescent  City  Live-Stock  Landing  and 
Slangliter-House  Company  in  the  exercise  of  certain  powers  conferred 
by  the  charter  which  created  it,  and  which  was  granted  by  the  legisla- 
turc  of  that  State.   .   .   . 

The  records  show  that  the  plaintiffs  in  error  relied  upon,  and  asserted 
throughout  the  entire  course  of  the  litjoation  in  the  State  courts,  that 
the  grant  of  privileges  in  the  charter  of  defendant,  which  they  were 
contesting,  was  a  violation  of  the  most  important  provisions  of  the 
thirteenth  and  fourteenth  articles  of  amendment  of  the  Constitution 
of  the  United  States.  The  jurisdiction  and  the  duty  of  this  court  to 
review  the  judgment  of  the  State  court  on  those  questions  is  clear  and 
is  imperative. 

The  statute  thus  assailed  as  unconstitutional  was  passed  March  8, 
1869,  and  is  entitled  "  An  Act  to  protect  the  health  of  the  City  of  New 
Orleans,  to  locate  the  stock-landings  and  slaugliter-houses,  and  to  in- 
corporate the  Crescent  City  Livc-Stock  Landing  and  Slaughter-House 
Company." 

T he  first  section  forbids  tlie  landing  or  slaughtering  of  animals  whose 
flesh  is  intended  for  food,  within  the  city  of  New  Orleans  and  other 
parishes  and  boundaries  named  and  defined,  or  the  kee])ing  or  estab- 
lishing any  slaughter-houses  or  abattoirs  within  those  limits,  except  by 
the  corporation  thereby  created,  wliich  is  also  limited  to  certain  places 
afterwards  mentioned.  Suitable  penalties  are  enacted  for  violations  of 
this  prohibition. 

The  second  section  designates  the  corporators,  gives  the  name  to  the 
corporation,  and  confers  on  it  the  usual  cor|)orate  powers. 

The  third  and  fourth  sections  authorize  the  company  to  establish  and 
erect  within  certain  territorial  limits,  therein  defined,  one  or  more  stock- 
yards, stock-landings,  and  slaughter-houses, -and-impose  upon  it  the 

1  The  statement  of  facts  is  omitted.  —  Ed. 


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CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  517 

duty  of  erecting,  on  ov  before  the  first  day  of  June,  1869,  one  grand 
slaughter-house  of  suflicieut  capacity  for  slaugUterino;  five  hundred 
animals  per  day. 

It  declares  that  the  company,  after  it  shall  have  prepared  all  the 
necessary  buildings,  yards,  and  other  conveniences  for  that  purpose, 
shall  have  the  sole  and  exclusive  privileoe  of  conductino;  and  carrying 
on  the  live-stock  landing  and  slaughter-house  business  within  the  limits 
and  privilege  granted  by  the  Act,  and  that  all  such  animals  shall  be 
landed  at  the  stock-landings  and  slaughtered  at  the  slaughter-houses  of 

^^     ^^^^    yL^-^v.v.^ji_^^^ji_.^,C;<^       \ka.\      ^Cx^       L-^jLjc^      h^AJiX^^ 
«^^'^^-^-«— dLc>o^-«.^AX^       /^oc^^J^      -U^...i:f-       .-^--^^i    -Otoc-t^    r>^_*xx 


/ 


CHAP.  IV.]  SLAUGHTER-HOUSE  CASES.  517 

duty  of  erecting,  on  or  before  the  first  day  of  June,  1869,  one  grand 
slaug-hter-hoasc  of  suflicient  capacity  for  sIauohterin<j:  five  hundred 
animals  per  day. 

It  declares  that  the  company,  after  it  shall  have  prepared  all  tlie 
necessary  buildings,  yards,  and  other  conveniences  for  that  purpose, 
shall  have  the  sole  and  exclusive  privilege  of  conductino;  and  carrying 
on  the  live-stock  landing  and  slaughter-house  business  within  the  limits 
and  privilege  granted  by  the  Act,  and  that  all  such  animals  shall  be 
lauded  at  the  stock-landings  and  slaughtered  at  the  slaughter-houses  of 
the  company,  and  nowhere  else.  Penalties  are  enacted  for  infractions 
of  this  provision,  and  prices  fixed  for  the  maximum  charges  of  the 
company  for  each  steamboat  and  for  each  animal  landed. 

Section  five  orders  the  closing  up  of  all  other  stock-landings  and 
slaughter-houses  after  the  first  day  of  June,  in  the  parishes  of  Orleans, 
Jefferson,  and  St.  Bernard,  and  makes  it  the  duty  of  the  comi^any  to 
permit  any  person  to  slaughter  animals  in  their  slaughter-houses  under 
a  heavy  penalty  for  each  refusal.  Another  section  fixes  a  limit  to  the 
charges  to  be  made  by  the  company  for  each  animal  so  slaughtered  in 
their  building,  and  another  provides  for  an  inspection  of  all  animals 
intended  to  be  so  slaughtered,  by  an  officer  appointed  by  the  Governor 
of  the  State  for  that  purpose. 

These  are  the  principal  features  of  the  statute,  and  are  all  tbat  have 
any  bearing  upon  the  questions  to  be  decided  b}'  us. 

This  statute  is  denounced  not  only  as  creating  a  monopoly  and  con- 
ferring odious  and  exclusive  privileges  upon  a  small  number  of  persons 
at  the  expense  of  the  great  body  of  the  community  of  New  Orleans,  but 
it  is  asserted  that  it  deprives  a  large  and  meritorious  class  of  citizens  — 
the  whole  of  the  butchers  of  the  city  —  of  the  right  to  exercise  their 
trade,  the  business  to  which  they  have  been  trained  and  on  which  they 
depend  for  the  support  of  themselves  and  their  families  ;  and  that  the 
unrestricted  exercise  of  the  business  of  butchering  is  necessary  to  the 
daily  subsistence  of  the  population  of  the  city. 

But  a  critical  examination  of  the  Act  hardly  justifies  these  assertions. 

It  is  true  that  it  grants,  for  a  period  of  twenty-five  years,  exclusive 
privileges.  And  whether  those  privileges  are  at  the  expense  of  the 
community  in  the  sense  of  a  curtailment  of  any  of  their  fundamental 
rights,  or  even  in  the  sense  of  doing  them  an  injury,  is  a  question  open 
to  considerations  to  be  hereafter  stated.  But  it  is  not  true  that  it  de- 
prives the  butchers  of  the  right  to  exercise  their  trade,  or  imposes  ui>on 
them  any  restriction  incompatible  with  its  successful  pursuit,  or  fur- 
nishing the  people  of  the  city  with  the  necessary  daily  supply  of  animal 
food. 

The  Act  divides  itself  into  two  main  grants  of  privilege,  — the  one  in 
reference  to  stock-landings  and  stock-yards,  and  the  other  to  slaughter- 
houses. <That  the  landing  of  live-stock  in  large  droves,  from  steamboats 
on  the  bank  of  the  river,  and  from  railroad  trains,  should,  for  the  safety 


518  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

and  comfort  of  the  people  and  the  care  of  the  animals,  be  limited  to 
proper  places,  and  those  not  numerous,  it  needs  no  argument  to  proves 
Nor  can  it  be  injurious  to  the  general  community  that  while  the  duty  of 
making  ample  preparation  for  this  is  imposed  upon  a  few  men,  or  a  cor- 
poration, they  should,  to  enable  them  to  do  it  successfulh",  have  the 
exclusive  right  of  providing  such  landing-places,  and  receiving  a  fair 
compensation  for  the  service. 

It  is,  however,  the  slaughter-house  privilege,  which  is  mainl}-  relied 
on  to  justify  the  charges  of  gross  injustice  to  the  public,  and  invasion  of 
private  right. 

It  is  not,  and  cannot  be  successfully  controverted,  that  it  is  both  the 
right  and  the  duty  of  the  legislative  body  —  the  su|)reme  power  of  the 
State  or  municipality  —  to  prescribe  and  determine  the  localities  whore 
the  business  of  slaughtering  for  a  oreat  city  may  be  conducted.  To  do 
this  effectively  it  is  indispensable  that  all  persons  who  slaughter  animals 
for  food  shall  do  it  in  those  places  and  nowhere  else. 

The  statute  under  consideration  defines  these  localities  and  forbids 
slaughtering  in  any  other.  It  does  not,  as  has  been  asserted,  prevent 
the  butcher  from  doing  his  own  slaughtering.  On  the  contrary,  the 
S laughtei'-House  Company  is  required,  under  a  heavy  penalty,  to  per- 
mit any  person  v.  ho  wishes  to  do  so,  to  slaughter  in  their  houses  ;  and 
they  are  bound  to  make  ample  provision  for  the  convenience  of  all 
the  slaughtering  for  the  entire  city.  The  butcher  then  is  still  i)ermitted 
to  slaughter,  to  prepare,  and  to  sell  his  own  meats  ;  but  he  is  required 
to  slaughter  at  a  specified  place  and  to  pay  a  reasonable  compensation 
for  the  use  of  the  accommodations  furnished  him  at  that  place. 

The  wisdom  of  the  monopoly'  granted  by  the  legislature  maT  be  open 
to  question,  but  it  is  difficult  to  see  a  justification  for  the  assertion  that 
the  butchers  are  deprived  of  the  right  to  labor  in  their  occuijation,  or 
the  people  of  their  daily  service  in  ijrei^aring  food,  or  how  this  statute, 
with  the  duties  and  guards  imposed  upon  the  company,  can  be  said 
to  destroy  the  business  of  the  butcher,  or  seriously  interfere  W'ith  its 
pursuit. 

The  power  here  exercised  b}'  the  Legislature  of  Louisiana  is,  in  its 
essential  nature,  one  which  has  been,  up  to  the  present  period  in  the 
constitutional  histor}'  of  this  countr}^  always  conceded  to  belong  to  the 
States,  however  it  may  now  be  questioned  in  some  of  its  details. 

"  Unwholesome  trades,  slaughter-houses,  operations  ofFensJA'e  to  the 
senses,  tlio  deposit  of  liowder.  the  ai)plication  of  steam-i>ower  to  propel 
cars,  tlic  building  wuth  combustrUTe  materialsTand  the  l)urial  of  the  dea'B. 
may  all,"  says  Chancellor  Kent,  2  Commentaries,  340,  '■'■  be  biterdicte'd 
by  law,  in  the  midst  of  dense  masses  of  population,  on  the  general  and 
rational  principle,  tji^at  every joerson  ought  so  to  use  his  property  as  iiot 
to  injure  his  neio-hbors  :  and  that  private  interests  must  be  made  sub- 
servient to  tho  general  interests  of  the  community."  This  is  called  the 
jlQliij.;i42(ia£I' ;  and  it  is  declared  by  Clncf  .Justice  Shaw,  Commo?itoeaIth 
V.  A/ffer,  7  Cush.  84,  that  it  is  much  easier  to  perceive  and  realize 


CHAP.  IV.]  SLAUGHTER-HOUSE    CASES.  519 


c^^^X^      cx^^  ck.     yCJSue^  cuts.     ^^L<jU2i4A.  o^ 

the  existence  and  sources  of  it  than  to  mark  its  boundaries,  or  prcscribo       O^foc^ax 
limits  to  its  exercise.  aue^jU   ^ 

This  power  is,  and  must  be  From  its  very  nature,  incapable  of  any  v3 

very  exact  definition  or  limitation.     Upon  it  depends  tiie  security  of     Ccfc^  "^ 
social  ordei,  the  life  and  health  of  the  citizen,  the  comfort  of  an  exist-     yUAA/^bdi 
ence  in  a  thickly  populated  community,  the  enjoyment  of  private  and     y         ^ 
social  life,  and  the  beneficial  use  of  property.     "  It  extends,"  says  an-     U."^^  "^^ 
other  eminent  judge  ( Thorpe  v.  Rutland  and  Burlington  liailroacl    ^tA/e-\^    I 
Co.,  27  Vt.  149),  "  to  the  protection  of  the  lives,  limbs,  hcaltli.  com-     >j„^.jj^^„^  "* 
fort,  and  quiet  of  all  persons,  and  the  protection  of  all  i)roi)crty  within    ^       .     . 
the  State  ;  .  .  .  and  persons  and  i:)ropertv  are  subjected  to  all  kinds  of   ^^^^-^-^   ^ 
restraints  and  burdens  in  order  to  secure  the  geueral  comfort,  health,    ^^^^     C^  I 
and  prosperitv  of  the  State.     Of  the  perfect  rioht  of  the  legislature  to         .  . ^ 

do  this  no  question  ever  was,  or.  upon  acknowledged  gfeneral  principles.   P^'^^-^pi^ 
ever  can  be  made,  so  f;xr  as  natural  persons  are  concerned . "  --t^o 

The  regulation  of  tlie  i:)lace  and  manner  of  conducting;  the  slaughter-  / 

inp;  of  animals,  and  the  business  of  butchering  within  a  city,  and  the    ^ /?  ^ 
inspection  of  the  aniunils  to  be  killed  lor  meat,  and  of  the  meat  after-   Jpo<-^~\y'-'^ 
wards,  are  among  the  most  necessary  and  frequent  exercises  of  this    ^yy^^  ,^ 
power.      It  is  not,  therefore,  needed  that  we  should  seek  for  a  compre- 
hensive  definition,  but  rather  look  for  the  proper  source  of  its  exercise.   -lrKX>^tM<: 
.  .   .  [Here  the  court  briefly  considers  Gibbons  v.  Ogden,  9  Wheat.  1,    (^.eWijtu^ 
Neio  Yorky.  Miln,  11  Pet.^102,  The  License  Tax,  5  Wall.  471,  and 
United  States  v.  Deioitt,  9  Wall.  41.]  cJ^  ^^-^  ^^ 

It  cannot  be  denied  that  the  statute  under  consideration  is  aptly   oJjx^J^-u^  t 
framed  to  remove  from  the  more  densely  populated  part  of  the  city  the      ;         / 
noxious  slaughter-houses,  and  large  and  offensive  collections  of  animals     I'^^^^-^^^^^J^ 
necessarily  incident  to  the  slaughtering  business  of  a  large  city,  and  to  .^t/M/tA^*-^^-^ 
locate  them  where  the  convenience,  health,  and  comfort  of  the  people  ^^fjjj^^    4xl 
require  they  shall  be  located.    And  it  must  be  conceded  that  the  means 
adopted  bv  the  Act  for  this  purpose  are  appropriate,  are  strinoent.  and 
effectual.     But  it  is  said  that  in  creating  a  corporation  for  this  purpose, 
and  conferring  upon  it  exclusive  privileges  —  privileges  w-liich  it  is  said 
constitute  a  monopoly  —  the   legislature  has  exceeded  its  i)owcr.    J^r^j 
this  statute  had  imposed  on  the  city  of  New  Orleans  precis_ely_tlie^ame^ 
duties,  accompanied  by  the  same  ])rivileges,  which  it  has  on  the  cor- 
poration which  it  created,  it  is  believed  that  no  Question  would  have  ^ oje-eco^/l 
been  raised  as  to  its  constitutionality.     In  that  case  the  effect  on  the  .  0  / 

butchers  in  pursuit  of  their  occupation  and  on  the  public  would  have  '^ |  <\  etni"*^ 
been  the  same  as  it  is  now.     Why  cannot  the  legislature  confer  t\n',^j^-f£^  j), 
same  ])Owers  on  another  corporation,  created  for  a  lawful  and  useful   -  ^  y- 
pul)lic  object,  that  it  can  on  the  municipal  corporation  nirpndv  existing P-^^*^^^*'^^^'^ 
That  wherever  a  legislature  has  the  right  to  accomplish  a  certain  re-  jcAjtiti  vi* 
suit,  and  that  result  is  best  attained  by  means  of  a  corporation,  it  has 
the  right  to  create  such  a  corporation,  and  to  endow  it  witli  the  powers 
necessary  to  effect  the  desired  and  lawful  purpose,  seems  hardly  to  admit 
of  debate.    The  proposition  is  ably  discussed  and  aflirmed  in  the  case  of 


520  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

McCuUoch  V.  The  State  of  Maryland,  4  Wheat.  316,  in  relation  to  the 
power  of  Congress  to  organize  the  Bank  of  the  United  States  to  aid  in 
the  fiscal  operations  of  the  government. 

It  can  readily  be  seen  that  the  interested  vigilance  of  the  corporation 
created  bv  the  Louisiana  Legislature  will  be  more  ellicient  in  enforcing 
Uie  1  i mitation  prescribed  for  the  stock-landing  and  slaughtering  busi - 
ness  fur  the  good  of  the  city  than  the  ordinary  efforts  of  the  oflicers  of 
the  law. 

Unless,  therefore,  it  can  be  maintained  that  the  exclusive  privilege 
granted  by  this  charter  to  the  corporation  is  beyond  the  power  of  the 
Legislature  of  Louisiana,  there  can  be  no  just  exception  to  the  validity 
of  the  statute.  And  in  this  respect  we  are  not  able  to  see  that  these 
privileges  are  especially'  odious  or  objectionable.  The  duty  imposed  as 
a  consideration  for  the  privilege  is  well  defined,  and  its  enforcement 
w^ell  guarded.  The  prices  or  charges  to  be  made  by  the  company  are 
limited  by  the  statute,  and  we  are  not  advised  that  they  are  on  the 
whole  exorbitant  or  unj u s t . 

The  proposition  is,  therefore,  reduced  to  these  terms  :  Can  anyj  ex- 
clusive! privileges  be  granted  to  any  of  its  citizens,  or  to  a  corpuialiou, 
by  the  legislature  of  a  State  ? 

The  eminent  and  learned  counsel  who  has  twice  argued  the  negative 
of  this  question,  has  displayed  a  research  into  the  history  of  monopolies 
in  England  and  the  European  Continent,  only  equalled  by  the  eloquence 
with  which  they  are  denounced. 

But  it  is  to  be  observed,  that  all  Such  references  are  to  monopolies 
established  by  the  monarch  in  derogation  of  the  rights  of  his  subjects, 
or  arise  out  of  transactions  in  which  the  people  were  unrepresented,  and 
their  interests  uncared  for.  The  great  Case  of  Monopolies,  reported  by 
Coke,  and  so  fully  stated  in  the  brief,  was  undoubtedly  a  contest  of  the 
comm.ons  against  the  monarch.  The  decision  is  based  upon  the  ground 
•  that  it  was  against  common  law,  and  the  argument  was  aimed  at  the 
unlawful  assumption  of  power  by  the  Crown  ;  for  who  ever  doubted 
the  authority  of  Parliament  to  change  or  modify  the  common  law? 
The  discussion  in  the  House  of  Commons  cited  from  Macaulay  clearly 
establishes  that  the  contest  was  between  the  Crown,  and  the  people 
represented  in  Parliament. 

But  we  think  it  may  be  safely  affirmed,  that  the  Parliament  of 
Great  Britain,  representing  the  people  in  theiMegislative  functions,  and 
the  legislative  bodies  of  this  country,  have  from  time  immemorial  to  the 
present  day  continued  to  grant  to  persons  and  corporations  exclusive 
privileges,  —  privileges  denied  to  other  citizens,  —  privileges  which 
come  within  any  just  definition  of  the  word  monoi)oly,  as  much  as 
those  now  under  consideration  ;  and  that  the  power  to  do  this  has 
never  been  questioned  or  denied.  Nor  can  it  be  truthfully  denied,  that 
some  of  the  most  useful  and  beneficial  enterprises  set  on  foot  for  the 
general  good,  have  been  made  successful  by  means  of  these  exclusive 
rights,  and  could  only  have  been  conducted  to  success  in  that  way. 


CHAP.  IV.]  SLAUGHTEK-HOUSE   CASES.  521 

It  nia}',  therefore,  be  considered  as  established,  that  the  authority  of 
the  Lcgishiture  of  Louisiana  to  pass  the  present  statute  is  ample,  unless 
some  restraint  in  the  exercise  of  that  power  be  found  in  the  Constitution 
of  that  State  or  in  the  amendments  to  the  Constitution  of  the  United 
States,  adopted  since  the  date  of  the  decisions  we  have  already  cited. 

If  any  such  restraint  is  supposed  to  exist  in  the  Constitution  of  the 
State,  the  Supreme  Court  of  Louisiana  having  necessarily  passed  on  that 
question,  it  would  not  be  open  to  review  in  this  court. 

Thf  plninriff.^  in  orvor  accepting  this  issue,  allege  that  the  statute  is 
a  violation  of  the  Constitution  of  the  United  States  in  these  several 
particulars  :  — 

I)         That  it  creates  an  involuntary  servitude  forbidden  by  the  thirteenth 
article  of  amendment ; 

*j        That  it  abridges   the  privileges  and   immunities  of  citizens  of  the 

United  States ;  Gjdt  >V^.  ,  ^^-^ 

"V        That  it  denies  to  the  ijlaintiffs  the  equal  protection  of  the  laws  ;  and,"   ^^^^ 

Vj        That  it  deprives  them  of  their  property  without  due  process  of  law  : 
contrary  to  the  provisions  of  the  first  section  of  the  fourteenth  article  of 

This  court  is  thus  called  upon  for  the  first  time  to  give  construction  to 
these  articles. 

We  do  not  conceal  from  ourselves  the  great  responsibility  which  this 
dut}'  devolves  upon  us.  No  questions  so  far-reaching  and  pervading 
in  their  consequences,  so  profoundl}'  interesting  to  the  people  of  this 
countr}',  and  so  important  in  their  bearing  upon  the  relations  of  the 
United  States,  and  of  the  several  States  to  each  other  and  to  the  citi- 
zens of  the  States  and  of  the  United  States,  have  been  before  this  court 
during  the  official  life  of  any  of  its  present  members.^  We  have  given 
every  opportunity  for  a  full  hearing  at  the  bar;  we  have  discussed  it 
freel}'  and  compared  views  among  ourseh'es  ;  we  have  taken  ample 
time  for  careful  deliberation,  and  we  now  propose  to  announce  the 
judgments  which  we  have  formed  in  the  construction  of  those  articles, 
so  far  as  we  have  found  them  necessary  to  the  decision  of  the  cases 
before  us,  and  beyond  that  we  have  neither  the  inclination  nor  the  right 
to  go. 
ditiejtc^  Twelve  articles  of  amendment  were  added  to  the  Federal  Constitution 


.^■> 


soon  after  the  original  organization  of  the  government  under  it  in  1780. 
Of  these  all  but  the  last  were  adopted  so  soon  afterwards  as  to  justify  the 
statement  that  the}'  were  practically  contemporaneous  with  the  ado|)tion 
of  the  original ;  and  the  twelfth,  adopted  in  eighteen  hundred  and  three, 
w-as  so  nearly  so  as  to  have  become,  like  all  the  others,  historical  and  of 
another  age.     But  within  the  last  eight  j-ears  three  other  articles  of 

1  The  oldest  in  office,  Mr.  Jtstice  Clifford,  had  succeeded  Curtis,  J.,  in  Janu- 
ary, 1858.  No  one  of  the  bench  who  had  decided  tlie  case  of  Dred  Scott  v.  Sandford, 
was  now  present,  except  Mr.  Justice  Campbell,  —  and  he  was  at  the  bar  now,  and 
counsel  for  the  plaintiffs.  —  Ed.        7 


522  SLAUGHTER-HOUSE   CASES.  [CIIAP.  IV. 

araendincnt  of  va?t  importance  have  been  added  by  tlie  voice  of  tlie 
people  to  tliat  now  venerable  instrument. 

The  most  cm'sory  uiance  at  these  articles  discloses  a  unity  of  i)ur|)ose^ 
when  taken  in  connection  witli  the  history  of  the  times,  which  cannot 
fail  to  have  an  imuortaiit  bearing;  on  any  ciuestion  of  doubt  concerning 
their  true  meaning'.  Nor  can  such  doubts,  when  any  rcasonablv  exist, 
be  safely  and  rationally  sohed  without  a  reference  to  that  history  ;  for 
in  it  is  found  the  occasion  and  the  necessit}'  for  recurring  again  to  the 
great  source  of  power  in  this  country,  the  people  of  the  States,  for  ad- 
ditional guarantees  of  human  rights ;  additional  powers  to  the  Federal 
government ;  additional  restraints  upon  those  of  the  States.  Fortu- 
nately that  histoiy  is  fresh  within  the  memory  of  us  all,  and  its  leading  IT^  /I 
features,  as  they  bear  upon  the  matter  before  us,  free  from  doubt. 

The  institution  of  African  slaver}',  as  it  existed  in  about  half  the  aA^ 
States  of  the  Union,  and  the  contests  pervading  the  public  mind  for 
man}'  years,  between  those  who  desired  its  curtailment  and  ultimate 
extinction  and  those  who  desired  additional  safeguards  for  its  security 
and  perpetuation,  culminated  in  the  effort,  on  the  part  of  most  of  the 
States  in  which  slaver}'  existed,  to  separate  from  the  Federal  govern- 
ment, and  to  resist  its  authority.  This  constituted  the  War  of  the 
Rebellion,  and  whatever  auxiliary  causes  may  have  contributed  to 
bring  about  this  war,  undoubtedly  the  overshadowing  and  efficient 
cause  was  African  slaver}'. 

In  that  sti'uggie  slavery,  as  a  legalized  social  relation,  perished. 
It  perished  as  a  necessity  of  the  bitterness  and  forc^?  of  the  conflict. 
When  the  armies  of  freedom  found  themselves  upon  the  soil  of  slavery 
they  could  do  nothing  less  than  free  the  poor  victims  whose  enforced 
servitude  was  the  foundation  of  the  quarrel.  And  when  hard  pressed 
in  the  contest  these  men  (for  they  proved  themselves  men  in  that  ter- 
rible crisis)  offered  their  services  and  were  accepted  by  thousands  to 
aid  in  supi)ressing  the  nnlawful  rebellion,  slavery  was  at  an  end  wher- 
ever the  Federal  government  succeeded  in  that  purpose.  The  procla- 
mation of  President  Lincoln  expressed  an  accomplished  fact  as  to  a 
large  portion  of  the  insurrectionary  districts,  when  he  declared  slavery 
abolished  in  them  all.  But  the  -^var  being  over,  those  who  had  suc- 
ceeded in  re-establishing  the  authority  of  the  Federal  government  were 
not  content  to  permit  this  great  act  of  emancipation  to  rest  on  the  actual 
results  of  the  contest  or  the  proclamation  of  the  Fxecutive,  both  o f 
which  might  have  been  Questioned  in  after  times,  an d  they  determined 
to  place  this  main  and  most  valuable  result  in  the  Constitution  of  the 
restored  Union  as  one  of  its  fundamental  articles.  Plence  the  thirteenth 
article  of  amendment  of  that  instrument.  Its  two  short  sections  seem 
hardly  to  admit  of  construction,  so  vigorous  is  their  expression  and  so 
appropriate  to  the  purpose  we  have  indicated. 

"1.  Neither  shu'ervnor  involuntary  servitude,  except  as  a  ]')unish- 
ment  for  crime,  whereof  tbe  party  shall  have  been  duly  convicted,  shall 
exist  within  the  United  States  or  any  i)lace  subiect  to  their  jurisdiction. 


CHAP.  IV.]  SLAUGHTER-HOUSE   CASES.  523 

"  2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation." 

To  withdraw  the  mind  from  the  contemplation  of  this  grand  vet  sim- 
ple declaration  of  tlie  personal  freedom  of  all  the  hunmn  race  within  the 
jurisdiction  of  this  government  —  a  declaration  designed  to  establish 
the  freedom  of  four  millions  of  slaves  —  and  with  a  microscopic  search 
endeavor  to  find  in  it  a  reference  to  servitudes,  which  may  have  been 
attached  to  property  in  certain  localities,  requires  an  effort,  to  sa}-  the 
least  of  it. 

That  a  i:)ersonal  servitude  was  meant  is  proved  by  the  use  of  the  word 
"  involuntary,"  which  can  only  apply  to  human  beings.  The  exception 
of  servitude  as  a  punishment  for  crime  gives  an  idea  of  the  class  of  ser- 
vitude that  is  meant.  The  word  '•'■  servitude  "  is  of  larger  meaning  than 
slavery,  as  the  latter  is  popularly  understood  in  this  country,  and  the 
obvious  purpose  was  to  forbid  all  shades  and  conditions  of  African 
slaver3\  It  was  very  well  understood  that  in  the  form  of  apprentice- 
ship for  long  terms,  as  it  had  been  practised  in  the  West  India  Islands, 
on  the  abolition  of  slaver}-  by  the  English  government,  or  by  reducing 
the  slaves  to  the  condition  of  serfs  attached  to  the  plantation,  the  ]jur- 
pose  of  the  article  might  have  been  evaded,  if  only  tlie  word  ''  slavery  " 
had  been  used.  The  case  of  the  apprentice  slave,  held  under  a  law  of 
Maryland,  liberated  by  Chief  Justice  Chase,  on  a  writ  of  habeas  corpus 
under  this  article,  illustrates  this  course  of  observation.  Matter  of 
Turner,  1  Abbott  United  States  Reports,  84.  And  it  is  all  that  we 
deem  necessary'  to  say  on  the  application  of  that  article  to  the  statute 
of  Louisiana,  now  under  consideration. 

The  process  of  restoring  to  their  proper  relations  with  the  Federal 
government  and  with  the  other  States  those  which  had  sided  with  the 
Rebellion,  undertaken  under  the  proclamation  of  President  Johnson  in 
1865,  and  before  the  assembUng  of  Congress,  developed  the  fact  that, 
notwithstanding  the  formal  recognition  by  those  States  of  the  abolition 
of  slaver}-,  the  condition  of  the  slave  race  would,  without  further  pro- 
tection of  the  Federal  government,  be  almost  as  bad  as  it  was  before. 
Among  the  first  acts  of  legislation  adopted  by  several  of  the  States  in 
the  legislative  bodies  which  claimed  to  be  in  their  normal  relations  with 
the  Federal  government,  were  laws  which  imposed  upon  the  colored 
race  onerous  disabilities  and  burdens,  and  curtailed  their  rights  in  the 
pursuit  of  life,  liberty,  and  i^roperty  to  such  an  extent  that  their  freedom 
was  of  little  value,  while  they  had  lost  the  protection  which  they  had 
received  from  their  former  owners  from  motives  both  of  interest  and 
humanity. 

They  were  in  some  States  forbidden  to  appear  in  the  towns  in  any 
ther  character  than  menial  servants.  They  were  required  to  reside  on 
and  cultivate  the  soil  without  the  right  to  purchase  or  own  it.  The}' 
were  excluded  from  many  occupations  of  gain,  and  were  not  permitted ■ 
to  give  testimony  in  the  courts  in  any  case  where  a  wliite  man  was  a 
party.     It  was  said  that  their  lives  were  at  the  mercy  of  bad  men, 


JiiucMA. 


524  SLAUGHTEK-HOUSE   CASES.  [CHAP.  IV. 

either  because  the  la\YS  for  their  protection  were  insuirioient  or  were 
not  enfoiced. 

These  circumstances,  whatever  of  falsehood  or  misconception  may 
have  been  niingled  with  their  presentation,  forced  upon  the  statesmen  I 

who  had  conducted  the  Federal  government  in  safety  through  the  crisis  I 

of  the  Rebellion,  and  who  supposed  that  by  the  thirteenth  article  of  * 

amendment  the}-  had  secured  the  result  of  their  labors,  the  conviction 
that  somcthino;  more  was  necessary  in  the  way  of  constitutional  nrotec-  /^  ^  (X^ 
'tion  to  the  unfortunate  race  who  had  suffered  so  much.    They  accordingly  ^ 

passed  throuoli  Congress  the  uroposition  for  the  Fourteenth  Amendment,   ' 
and  they  declined  to  treat  as  restored  to  their  full  participation  in  the 
government  of  the  Union  the  States  which  had  been  in  insurrection , 
until  they  ratified  that  article   by  a   formal  vote  of  their  legislative 
bodies. 

Before  we  proceed  to  examine  more  critically  the  provisions  of  this 
amendment,  on  which  the  plaintiffs  in  error  reh',  let  us  complete  and 
dismiss  the  history  of  the  recent  amendments,  as  that  histor}'  relates 
to  the  general  purpose  which  pervades  them  all.     A  few  years'  expe- 
rience satisfied  the  thoughtful  men  who  had  been  the  authors  of  the 
other  two  amendments   that,   notwithstanding  the  restraints  of  those 
articles  on  the  .States,  and  the  laws  passed  under  the  additional  powers 
granted  to  Congress,  these  were  inadequate  for  the  protection  of  life, 
liberty,  and  proijerty,  without  which  freedom  to  the  slave  was  no  boon.       ^^ 
They  were  in  all  those  States  denied  the  right  of  sulfrage.     The  laws  ' 
were  administered  by  the  white  man  alone.    It  was  urged  that  a  i-ace  of  ^n>!M<A; 
men  distinctively  marked  as  was  the  negro,  living  in  the  midst  of  another 
and  dominant  race,  could  never  be  fully  secured  in  their  [)erson  and  their 
property  wdthout  the  right  of  suffrage. 

Hence  the  Fifteenth  Amendment,  which  declares  that  "  the  right  of  a 

citizen  of  the  United  States  to  vote  shall  not  be  denietl  or  abridged  by 

f     -^iJ   ''ii^y  State  on  account  of  race,  color,  or  previous  condition  of  servitude." 

.  XnAitAr  The  neo-ro  having,  by  the  Fourteenth  Amendment,  been  declared  to  be  a 

,CAa/icCtJi.  cjtizen  of  the  United  SjLates,  is  thus  made  a  voter  in  every_State  of  the 

y  UmoiLu 

AcpJ\r  "^        We  repeat,  then,  in  the  light  of  this  recapitulation  of  events,  almost 
i  too  recent  to  be  called  history,  but  which  are  familiar  to  us  all ;  and  on 

the  most  casual  examination  of  tlie  language  of  these  amendments,  no 
ojie_  can  fail  to  be  impressed  with  the  one  pervading  ])urpose  found  in 


(.    Uaa^     them  all,  lying  at  the  foundation  of  each,  and  without  which  none  of 

I'     i^  .    them  would  have  been  even  suggested  ;  we  mean  the  freedom  of  tlie 

\\    ,       slave  race,  the  security  and  firm  csta])lishmont  of  that  freodoni,  ami 

^^ -^  ^     the  protection  of  the  ncwly-mado  fi'ecuian  and  citizen  from  the  oi)|)rcs- 

/k.  sions  of  t.liose  who  had  formerlTexcrcisod  unlimited  dominion  over  liim. 

It  is  true  that  only  the  Fifteenth  Amendment,  in  terms,  mentions  the 

negro  by  speaking  of  his  color  and  his  slavery.     But  it  is  just  as  true 

that  each  of  the  other  articles  was  addressed  to  the  grievances  of  that 

race,  and  designed  to  remedy  them  as  the  Fifteenth. 


CIIAr.  IV.]  SLAUGHTER-HOUSE   CASES.  525 

We  do  not  sa}'  that  no  one  else  but  the  negro  can  share  in  this 
protection.  Both  the  language  and  spirit  of  these  articles  are  to  have 
their  fair  and  just  weight  in  ciuy  question  of  construction.  Undoubtedh* 
while  negro  slavery  alone  was  in  the  mind  of  the  Congress  which  pro- 
posed the  thirteenth  article,  it  forbids  any  other  kind  of  slavery,  now  or 
hereafter.  If  Mexican  peonage  or  the  Chinese  cooly  labor  system  shall 
develop  slavery  of  the  Mexican  or  Chinese  race  within  our  territory , 
this  amendment  may  safely  be  trusted  to  make  it  void.  And  so  if  other 
riglits  are  assailed  by  the  States  which  properh'  and  necessaril}'  fall 
witliin  the  protection  of  these  articles,  that  protection  will  apph',  though 
the  party  interested  may  not  be  of  African  descent.  But  what  we  do 
sa}-,  and  what  we  wish  to  be  understood  [as  saying]  is,  that  in  any 
fair  and  just  construction  of  any  section  or  phrase  of  these  amendments. 
it  is  necessary  to.Jook  to  the  purpose  which  we  have  said  was  the  per- 
vading spirit_of_them  all,  the  evil  wliicli  they  were  dcsiouod  to  rcmedj-, 
and  thc_jjrocess  ^f  continued  addition  to  the  Con.slitutioii,  until  that 
purpose  was  supposed  to  be  accomplished,  as  far  as  constitutional  law 
can  accomplish  it. 

The  first  section  of  the  fourteenth  article,  to  which  our  attention  is 
more  specially  invited,  opens  with  a  definition  of  citizenship  —  not  only 
citizenship  of  the  United  States,  but  citizenship  of  the  States.  No  such 
•definition  was  previously  found  in  the  Constitution,  nor  had  any  attempt 
been  made  to  define  it  by  Act  of  Congress.  It  had  been  the  occasion  of 
much  discussion  in  the  courts,  b}'  the  executive  departments,  and  in  the 
public  journals.  It  had  been  said  by  eminent  judges  that  no  man  was 
a  citizen  of  the  United  States,  except  as  he  was  a  citizen  of  one  of  the 
States  composing  the  Union.  Those,  therefore,  who  had  been  born 
and  re  sided  always  in  the  District  of  Columbia  or  in  the  Territories , 
though  within  the  United  States,  were  not  citizens.  "Whether  tliis  propo- 
sition was  sound  or  not  had  never  been  judiciall}'  decided.  But_it  had 
been  held  by  this  court,  in  the  celebrated  Drecl  Scott  Case^j^^only.afcw 
years  before  the  outbreak  of  the  Civil  War,  that  a  man  of  African  de- 
scent, whether  a  slave  or  not,  was  not  and  could  not  be  a  citizen  of  a 
'^^J*'^  State  or  of  the  United  States.^     This  decision,  while  it  met  the  con- 

^JUatc  clemnation  of  some  of  the  ablest  statesmen  and  constitutional  lawyers 
of  the  countr}',  had  never  been  overruled  ;  and  if  it  was  to  be  accepted 
as  a  constitutional  limitation  of  the  right  of  citizenship,  then  all  the 
negro  race  who  had  recently  been  made  freemen,  were  still,  not  only 
not  citizens,  but  were  incapable  of  becoming  so  bj'  anything  short  of  an 

L  jXuA'<.nmendment  to  the  Constitution. 

{^  To  remove  this  difficulty  primarily,  and  to  establish  a  clear  and  com- 

prehensive definition  of  citizenship  which  should  declare  what  should 
constitute  citizenship  of  the  United  States,  and  also  citizenship  of  a 
State,  the  first  clause  of  the  first  section  was  framed. 

^i/t^^       "  All  persons  born  or  naturalized  in  the  United  States,  and  subject 

bi  /'A.jJjtu^'  ^  "^^  inadvertence.     See  ante,  pp.  491  n.  and  493  n.  — Ed. 


526  SLAUGHTEU-HOUSE    CASES.  [CIIAP.  IV. 

^  to  the  jurisdiction  thereof,  arc  citizens  of  the  United  States  and  of  the 

^^0  Stale  wherein  tliev  reside." 

<aX   r?u  The  Drst  observation  we  liave  to  make  on  this  clause  is,  that  it  puts 

o^^ioM**.      at  rest  both  the   questions  wliich  we  stated   to  have  been  the   sub- 
•^  '        ject  of  ditferenees  of  opinion.     It  declares  that  persons  may  be  citizens 
t  CXA*^^     of  the  United  States  without  regard  to  tlieir  citizenshi[)  of  a  particnlnr 
^i-'*.    -        State,  and  it  overturns  the  Dred  Scott  decision  by  making  all  persons 
,jyijUL  a.       born  within  the  United  States  and  subject  to  its  jurisdielion  citizens  of 
.  the  United  States.     That  its  main  purpose  was  to  estal)lish  the  citizcn- 

'^  V^        f.  ship  of  the  negro  can  admit  of  no  doubt.      The  ])hrase,  ''  subject  to  its 
UxAHua^  ji^n-jg^li^.^on  "  -^^-^s  intended  to  exclude  from  its  operation  children  of 
[^  iMA^i^        ministers,   consuls,   and   citizens  or  subjects   of  foreign   States   born 
^  within  the  United  States. 

.  ,  The  next  observation  is  more  important  in  view  of  the  arguments  of 

/\j.^oM^  .    coi^msel  ij^  the  present  case.     It  is,  that  the  distinction  between  citizen- 
ship of  the  United  States  and  citizenship  of  a  State  is  clearly  recognized 
and  established.    Not  only  may  a  man  be  a  citizen  of  the  United  States 
withoutjbeinji^  a  citizcii^  of  a  State,  but  an  important  element  is  neces- 
sary to  convert  the  Ibrnier  into  the  latter.      He  must  reside  witliin  the 
State  to  make  him  a  citizen  of  it,  1)ut  it  is  only  necessary  that  he  should 
be  born  or  naturalized  in  the  United  States  to  be  a  citizen  of  the  Ulliuil. 
J  -■^■i'.v  <5.<  .-  j^  -g  (^nxiQ  clear,  then,  that  there  is  a  citizenshij)  of  the  United  States, 
LA->->''  •*■    .  and  a  citizenship  of  a  State,  which  are  distinct  from  each  other,  and 
''V^  ;  -which  depend  u[)on  dilllrent  characteristics  or  circumstances   in  the 

"»  \  '      AVe  think  this  distinction  and  its  explicit  recognition  in  this  amend- 

ment of  great  weight  in  this  argument,  because  the  next  paragraph  of 
this  same  section,  which  is  the  one  raainh-  relied  on  b3-  the  plaintiffs  in 
error,  speaks  only  of  privileges  and  immunities  of  citizens  of  the  United 
States,  and  does  not  speak  of  those  of  citizens  of  the  several  States. 
The  argument,  however,  in  favor  of  the  plaintiffs  rests  wholl}'  on  the 
assumption  that  the  citizenship  is  the  same,  and  the  privileges  and 
immunities  guaranteed  by  the  clause  are  the  same. 

The  language  is,  "  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States."  It  is  a  little  remarkable,  if  this  clause  was  intended  as  a  pro- 
tection to  the  citizen  of  a  State  a<,^ainst  the  legislative  jwwer  of  his  own 
State,  that  the  word  citizen  of  the  State  should  be  left  out  when  it  is 
so  carefully  used,  and  used  in  contradistinction  to  citizens  of  the  United 
States,  in  the  very  sentence  which  i)recedes  it.  It  is  too  clear  lor  arim- 
ment  that  the  change  in  phraseology  was  adoi)ted  understandiuylv  and 

with  s\  puviw^g- 

Of  the  privileges  and  immnnities  of  the  citizen  of  the  United  States, 
and  of  the  privilefies  and  Immunities  of  the  citizen  of  the  State,  and 
what  they  respectively  are,  we  will  ijresently  consider  ;  but  we  wish  to 
state  here  that  it  is  only  the  former  which  are  placed  by  this  clause  under 
the  protection  of  the  Federal  Constitution,  and  that  the  latter,  whatever 


CHAP.  IV.]  SLAUGHTER-HOUSE  CASES.  527 

they  may  be,  are  not  intended  to  haye  any  additional  protection  by 
this  [)arag"ra[)h  of  the  amendment. 

If.  then,  there  is  a  difference  bct^veen  the  priyileafes  and  immunities 
belonginij:  to  a  citizen  of  the  United  States  as  such,  and  tliose  belonging 
to  the  citizen  of  the  State  as  such,  tlie  latter  must  rest  for  their  security 
and  protection  where  they  haye  herctofure  rested  ;  for  they  are  not  em- 
braced b}'  tliis  paragraph  of  the  amendment. 

The  first  occurrence  of  the  words  "  priyileges  and  immunities"  in  our 
constitutional  history,  is  to  be  found  in  the  fourth  of  the  Articles  of  the 
old  Confederation. 

It  declares  "  that  the  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  States  in  this 
Union,  the  free  inhabitants  of  each  of  these  States,  paupers,  yagabonds, 
and  fugitives  from  justice  excepted,  shall  be  entitled  to  all  the  priyileges 
and  immunities  of  free  citizens  in  the  several  States ;  and  the  people  of 
each  State  shall  have  free  ingress  and  regress  to  and  from  any  other 
State,  and  shall  enjoy  therein  all  the  priyileges  of  trade  and  commerce, 
subject  to  the  same  duties,  impositions,  and  restrictions  as  the  inhabit- 
ants thereof  respectively." 

In  the  Constitution  of  the  United  States,  which  superseded  the  Articles 
of  Confederation,  the  corresponding  provision  is  found  in  section  two  of 
the  fourth  article,  in  the  following  words :  "  The  citizens  of  each  State 
shall  be  entitled  to  all  the  privileges  and  immunities  of  citizens  of  the 
several  States." 

There  can  be  but  little  question  that  the  purpose  of  both  these  provi- 
sions is  the  same,  and  that  the  priyileges  and  immunities  intended  are 
the  same  in  each.  In  the  article  of  the  Confederation  we  have  some  of 
these  specificall}'  mentioned,  and  enough  perhaps  to  give  some  general 
idea  of  the  class  of  civil  rights  meant  by  the  phrase. 

Fortunately  we  are  not  without  judicial  construction  of  this  clause 
of  the  Constitution.  .  .  .  [Here  the  court  cites  and  briefly  considers 
Corjield  v.  Coryell,  4  Wash.  C.  C.  371,  Ward  v.  3Iaryland,  12  Wall. 
430,  and  Pavl  v.  Virginia,  8  Wall.  180.] 

The  constitutional  provision  there  alluded  to  did  not  create  those 
rights,  which  it  called  privileges  and  immunities  of  citizens  of  the 
States.  It  threw  around  them  in  that  clause  no  security  for  the  citizen 
of  the  State  in  which  they  were  claimed  or  exercised.  Nor  did  it  pro- 
fess to  control  the  power  of  the  State  governments  over  the  rights  of  its 
own  citizens. 

I ts  sole  purpose  was  to  declare  to  the  several  States,  that  whatever 
those  rights,  as  you  grant  or  establish  them  to  your  own  citizens,  or  as 
you  limit  or  qualify,  or  impose  restrictions  on  their  exercise,  the  same. 
neither  more  nor  less,  shall  be  the  measure  of  the  rights  of  citizens  of 
other  States  within  your  jurisdiction. 

It  would  be  the  vainest  show  of  learning  to  attempt  to  prove  bj'  cita- 
tions'of  authority,  that  up  to  the  adoption  of  the  recent  amendments, 
no  claim  or  pretence  was  set  up  that  those  rights  depended  on  the  Fed- 


oOJ 


SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 


eral  govomment  for  their  existence  or  protection,  beyond  the  very  few 
express  limitations  which  the  Federal  Constitution  imposed  upon  the 
States  —  such,  for  instance,  as  the  proliibition  against  ex  post  facto 
laws,  bills  of  attainder,  and  laws  impairing  the  obligation  of  contracts. 
But  with  the  exception  of  these  and  a  few  other  restrictions,  the  entire 
domain  of  tlie  Drivilegcs  and  iininnnitics  of  citizens  of  tlic  States,  as 
above  defined,  lav  within  tlie  constitutional  and  leirislative  power  of  the 
States,  and  without  that  of  the  Federal  government.  Was  it  tlic  pur- 
pose of  the  Fourteenth  Amcnduicnt,  by  tlie  simple  declaration  tliat  no 
Sjate  should  make  or  enforce  any  law  which  shall  abridge  the  privilea'cs 
and  immunities  of  citizens  of  the  United  States,  to  transfer  the  security 
a nd  protection  of  all  the  civil  i-ights  which  we  have  mentioned,  from  th e 
States  to  the  Federal  government?  And  where  it  is  declared  that 
Congress  shall  have  the  power  to  enforce  that  article,  was  it  intended 
to  bring  within  the  power  of  Congress  the  entire  domain  of  civil  rights 
heretofore  belonging  exclusively  to  the  States  ? 

All  this  and  more  must  follow,  if  the  proposition  of  the  plaintiffs  in 
error  be  sound.  For  not  onh'  are  these  riglits  subject  to  the  control 
of  Congress  whenever  in  its  discretion  an}-  of  them  are  supposed  to 
be  abridged  b}'  State  legislation,  but  that  bodj'  ma}'  also  pass  laws 
in  advance,  limiting  and  restricting  the  exercise  of  legislative  power 
b}'  the  States,  in  their  most  ordinarj'  and  usual  functions,  as  in  its 
judgment  it  ma}'  think  proper  on  all  such  subjects.  And  still  further, 
such  a  construction  followed  by  the  reversal  of  the  judgments  of  the 
Supreme  Court  of  Louisiana  in  these  cases,  would  constitute  this  court 
a  perpetual  censor  upon  all  legislation  of  the  States,  on  tlie  civil  rights 
of  their  own  citizens,  with  authority  to  nullif}-  such  as  it  did  not  approve 
as  consistent  with  those  rights,  as  they  existed  at  the  time  of  the  adop- 
tion of  this  amendment.  The  argument,  we  admit,  is  not  always  the 
most  conclusive  which  is  drawn  from  the  consequences  urged  against 
the  adoption  of  a  particular  construction  of  an  instrument.  But  when, 
as  in  the  case  before  us,  these  consequences  are  so  serious,  so  far- 
reaching  and  pervading,  so  great  a  departure  from  the  structure  and 
spirit  of  our  institutions  ;  when  the  effect  is  to  fetter  and  degrade  the 
State  governments  by  subjecting  them  to  the  control  of  Congress,  in 
the  exercise  of  powers  heretofore  universally  conceded  to  them  of  the 
most  ordinary  and  fundamental  character ;  when  in  fact  it  radically 
changes  the  whole  theory  of  the  relations  of  the  State  and  Federal 
governments  to  each  other  and  of  both  these  governments  to  the 
people  ;  the  argument  has  a  force  that  is  irresistible,  in  the  absence  of 
language  which  expresses  such  a  purpose  too  clearly  to  admit  of  doubt. 

We  are  convinced  that  no  such  results  were  intended  In'  the  Congress 
which  proposed  these  amendments,  nor  by  the  legislatures  of  the  Slates 
which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on  in  the 
argument  are  those  which  belong  to  citizens  of  the  States  as  such,  and 
that  they  are  left  to  the  State  governments  for  security  and  protection, 


CHAP.  IV.]  SLAUGHTER-KOUSE    CASES.  529 

and  not  bj-  this  article  placed  under  the  special  care  of  the  Federal  gov- 
ernment, we  may  hold  ourselves  excused  from  defining  the  privileges 
and  immunities  of  citizens  of  the  United  States  wliich  no  State  can 
abridge,  until  some  case  involving  those  privileges  may  make  it  neces- 
sary to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  immunities  are 
to  be  found  if  those  we  have  been  considering  are  excluded,  we  venture 
to  suggest  some  which  owe  their  existence  to  the  Federal  government, 
its  national  character,  its  Constitution,  or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Cvandall  v.  Nevada^  G 
Wall.  36.  It  is  said  to  be  the  riaht  of  the  citizen  of  this  great  countrv, 
protected  b}'  implied  guarantees  of  its  Constitution,  "  to  come  to  the 
seat  of  government  to  assert  any  claim  he  may  have  upon  that  govern- 
ment, to  transact  any  business  he  may  have  with  it,  to  seek  its  protec- 
tion, to  share  its  offices,  to  engage  in  administering  its  functions.  He 
has  the  right  of  free  access  to  its  seaports,  through  which  all  operation s 
of  foreign  commerce  are  conducted,  to  the  sub-treasuries,  land  offices, 
and  courts  of  justices  in  the  several  States."  And  quoting  from  the 
language  of  Cliief  Justice  Taney  in  another  case,  it  is  said  "  that  for 
all  the  great  ijurposcs  for  which  the  Federal  government  was  estab- 
lished, we  are  one  people,  with  one  common  countrv.  we  are  all  citizens 
of  the  United  States  ; "  and  it  is,  as  such  citizens,  that  their  rights  are 
supported  in  this  court  in  Grandall  v.  Nevada. 

Another  privilege  of  a  citizen  of  the  United  States  is  to  demand  the 
care  and  protection  of  the  Federal  government  over  his  life,  liberty,  and 
property  when  on  the  high  seas  or  within  the  iurisdiction  of  a  foreign 
government.     Of  this  there  can  be  no  doubt,  nor  that  the  right  depends  p  '  N^  \ 
upon  his  character  as  a  citizen  of  the  United  States.      The  right  to      /  '. 

peaceably  assemble  and  petition  for  redress  of  grievances,  the  privilege    '^'^^^'*^^*' 
of  the  writ  of  habeas  corpus.,  are  rights  of  the  citizen  guaranteed  by  the   -fxtiAr^cta  Wi 
Federal  Constitutio n .     The  right  to  use  the  navigable  waters  of  the  -^  ^     aa-j^io 

United  States,  however  they  may  penetrate  the  territory  of  the  several  , •  |1 

States,  all  rights  secured  to  our  citizens  by  treaties  witli  foi'eign  nations,  t^"*^     y 
are  dependent  upon  citizenship  of  tlie  United  States,  and  not  citizensliip 
of  a  State.     One  of  these  privileges  is  conferred  b}"  the  ver}'  article     7      y^u^^a^ 
under  consideration.     It  is  that  a  citizen  of  tlie  United  States  can,  of   ^^     ,     ^^ 
his  own  volition,  become  a  citizen  of  any  State  of  the  Union  b}-  a  bona    iT^^  Q 
fide  residence  therein,  with  the  same  rights  as  other  citizens  of  "tli a t 
State.    To  these  may  be  added  the  rights  secured  by  the  thirteenth  and 
fifteenth  articles  of  amendment,  and  by  the  other  clause  of  the  four- 
teenth, next  to  be  considered. 

But  it  is  useless  to  pursue  this  branch  of  the  inquiry,  since  we  are  of 
opinion  that  the  rights  claimed  by  these  plaintiffs  in  error,  if  they  have 
anj'  existence,  are  not  privileges  and  immunities  of  citizens  of  the 
United  States  within  the  meaning  of  the  clause  of  the  Fourteenth 
Amendment  under  consideration. 

"  All  persons  born  or  naturalized  in  the  United  States,  and  subject 
VOL.  I.  — 34 


530  SLAUGHTER-HOUSE   CASES.  [CHAP.  IV. 

to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wlierein  they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  nor  shall  any  State  deprive  any  person  of  life,  liljcrt}', 
or  property  without  due  process  of  law,  nor  den}'  to  any  person  within 
its  jurisdiction  the  equal  protection  of  its  laws." 

The  argument  has  not  been  much  pressed  in  these  cases  that  the  de- 
fendant's charter  deprives  tlie  plaintiffs  of  their  property  without  due 
process  of  law,  or  that  it  denies  to  them  the  equal  protection  of  the  law. 
The  first  of  these  paragraphs  has  been  in  the  Constitution  since  the 
adoption  of  the  FWth  Amendment,  as  a  restraint  upon  the  Federal  power. 
It  is  also  to  be  found  in  some  form  of  expression  in  the  constitutions  of 
nearl}-  all  the  States,  as  a  restraint  upon  the  power  of  the  States.  This 
law,  tlien,  has  practically  been  the  same  as  it  now  is  during  the  exist- 
ence of  the  government,  except  so  far  as  the  present  amendment  ma\' 
place  the  restraining  power  over  the  States  in  this  matter  in  the  hands 
of  the  Federal  government. 

We  are  not  without  judicial  interpretation,  therefore,  both  State  and 
national,  of  the  meaning  of  this  clause.  And  it  is  sufficient  to  say  that 
under  no  construction  of  tliat  provision  that  we  have  ever  seen,  or  any 
that  we  deem  admissible,  can  the  restraint  imposed  b}'  the  State  of 
Louisiana  upon  the  exercise  of  their  trade  by  the  butchers  of  New 
Orleans  be  held  to  bo  a  deprivation  of  property  within  the  meaning 
of  that  provision. 

"  Nor  shall  any  State  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws." 

In  the  light  of  the  history  of  these  amendments,  and  the  pervading 
purpose  of  them,  which  we  have  already  discussed,  it  is  not  difficult  to 
give  a  moaning  to  this  clause.  The  existence  of  laws  in  the  States 
where  the  newl}'  emancipated  negroes  resided,  which  discriminated 
with  gross  injustice  and  hardship  against  them  as  a  class,  was  the  evil 
to  be  remedied  by  this  clause,  and  by  it  such  laws  are  forbidden. 

If,  however,  the  States  did  not  conform  their  laws  to  its  requirements, 
then  by  the  fifth  section  of  the  article  of  amendment  Congress  was 
authorized  to  enforce  it  by  suitable  legislation.  ^We  doubt  very  much 
whetlier  any  action  of  a  State  not  directed  by  way  of  discrimination 
against  the  negroes  as  a  class,  or  on  account  of  their  race,  will  ever  be 
held  to  come  within  the  purview  of  this  provision.  It  is  so  clearly  a 
provision  for  that  race  and  that  emergency,  that  a  strong  case  would 
be  necejjsary  for  its  application  to  any  other.  But  as  it  is  a  State  tliat 
is  to  be  dealt  with,  and  not  alone  the  validity  of  its  laws,  we  may 
safely  leave  that  matter  until  Congress  shall  have  exercised  its  power, 
or  some  case  of  State  oppression,  by  denial  of  equal  justice  in  its 
courts,  shall  have  claimed  a  decision  at  our  hands.  We  find  no  such 
case  in  the  one  before  us,  and  do  not  deem  it  necessary  to  go  over  the 
argument  again,  as  it  may  have  relation  to  this  particular  clause  of  the 
amendment. 


CHAP.  IV.]  SLAUGHTER-HOUSE  CASES.  531 

In  the  early  history  of  the  organization  of  the  government,  its  states- 
men seem  to  have  divided  on  tlie  line  which  should  separate  the  powers 
of  the  national  government  from  those  of  the  State  governments,  and 
though  this  line  has  never  been  very  well  defined  in  public  opinion,  such 
a  division  lias  continued  from  that  day  to  this. 

The  adoption  of  the  first  eleven  amendments  to  the  Constitution  so 
soon  after  the  original  instrument  was  accepted,  shows  a  prevailing- 
sense  of  danger  at  that  time  from  tiie  Federal  power.  And  it  cannot 
be  denied  tliat  such  a  jealous}'  continued  to  exist  with  many  patriotic 
men  until  the  breaking  out  of  the  late  Civil  ^Yar.  It  was  then  dis- 
covered that  the  true  danger  to  the  perpetuitv  of  the  Union  was  in  the 
capacity  of  the  State  organizations  to  combine  and  concentrate  all  the 
powers  of  the  State,  and  of  contiguous  States,  for  a  determined  resist- 
ance to  the  general  government. 

Unquestionably  this  has  given  great  force  to  the  argument^  and  added 
large!}-  to  the  number,  of  those  who  believe  in  the  necessity  of  a  strong 
national  government. 

But,  however  pervading  this  sentiment,  and  however  it  may  have 
contributed  to  the  adoption  of  the  amendments  we  have  been  consider- 
ing, we  do  not  see  in  those  amendments  any  purpose  to  destro}'  the 
main  features  of  the  general  svstem.  Under  the  pressure  of  all  the 
excited  feeling  growing  out  of  the  war,  our  statesmen  have  still  be- 
lieved that  the  existence  of  the  States  with  powers  for  domestic  and 
local  government,  including  the  regulation  of  civil  rights  —  the  rights 
of  person  and  of  propertj-  —  was  essential  to  the  perfect  working  of  our 
complex  form  of  government,  though  thev  have  thought  proper  to  im- 
pose additional  limitations  on  the  States,  and  to  confer  additional  power 
on  that  of  the  nation. 

But  whatever  fluctuations  mav  be  seen  in  the  history  of  public  opinion 
on  this  subject  during  the  period  of  our  national  existence,  we  think  it 
will  be  found  that  this  court,  so  far  as  its  functions  required,  has  always 
held  with  a  steady  and  an  even  hand  the  balance  between  State  and 
Federal  power,  and  we  trust  that  such  ma}'  continue  to  be  the  histor}' 
of  its  relation  to  that  subject  so  long  as  it  shall  have  duties  to  perform 
which  demand  of  it  a  construction  of  the  Constitution,  or  of  an}'  of  its 
parts. 

The  judgments  of  the  Supreme  Court  of  Louisiana  in  these  cases  are 

Affirmed  ^ 

1  Chief  Jpstice  Cuas?:  and  the  Justices  Field,  Bradley,  ami  S\s'ayxe  dis- 
sented, aud  opinions  were  given  by  the  last  three. 

Mr.  Justice  Field  ai'gued  that  the  legislation  in  question  was  not  a  legitimate 
exercise  of  what  is  called  tiie  police  power,  but  was  an  attempt  to  take  from  private 
persons  and  to  vest  exclusively  in  a  corporation  the  riglit  to  pursue  a  lawful  and 
necessary  calling.  It  may  or  may  not,  he  ,said,  be  forbidden  by  tlie  Thirteenth  Amend- 
ment. But  it  certainly  is  by  the  Fourteenth,  for  it  denies  to  citizens  of  the  United 
States  fundamental  riglits  belonging  to  the  citizens  of  all  free  governments.  The 
Fourteenth  Amendment  secures  citizens  of  the  United  States  in  the  same  fundamental 
rights  which  are  guaranteed  in  the  body  of  the  Constitution  (art.  4,  s.  2)  to  citizens  of 


532  BARTEMEYER  V.   IOWA.  [CHAP.  IV. 


BARTEMEYER  v.   IOWA. 
Supreme  Court  of  the  United  States.     1873. 

[18  Wall  129.] 

Error  to  the  Supreme  Court  of  Iowa,  the  case  being  thus : 
Barteraeyer,  the  plaintiff  in  error,  was  tried  before  a  justice  of  the 
peace,  on  the  charge  of  selling  intoxicating  liquors,  on  the  8th  of 
March,  1870,  to  one  Tiraoth}'  Hickey,  in  Davenport  township,  in  the 
State  of  Iowa,  and  was  acquitted.  On  an  appeal  to  tlie  Circuit  Court 
of  the  State  the  defendant  filed  the  following  plea : 

"  And  now  comes  the  defendant,  F.  Bartemeyer,  and  for  plea  to  the 
information  in  this  cause  says :  He  admits  that  at  the  time  and  place 
mentioned  in  said  information  he  did  sell  and  deliver  to  one  Timothy 
Hickey  one  glass  of  intoxicating  liquor  called  whiskey,  and  did  then  and 
there  receive  pa}'  in  lawful  money  from  said  Hicke}'  for  the  same.     But 

the  States  as  against  hostile  legislation  from  States  other  than  their  own.  It  protects 
them  against  monopolies  and  secures  equality  of  right  in  pursuing  the  ordinary  avoca- 
tions of  life. 

ISIr.  Justice  Bradley,  concurring  in  this  opinion,  added  that  the  Louisiana  statute 
deprived  people  of  both  liberty  and  property,  and  also  of  the  equal  protection  of  the 
laws.  The  riglit  of  choice  in  adopting  lawful  employments  "  is  a  portion  of  their  lib- 
erty :  their  occupation  is  their  property." 

Mr.  Justice  Swayne  agreed  with  both  these  dissenting  opinions,  and  expressed  the 
view  that  liberty  in  the  Fourteenth  Amendment  "  is  freedom  from  all  restraints  but 
such  as  are  justly  imposed  by  law.  .  .  .  Property  is  everything  which  has  an  exchange- 
able value.  .  .  .  Labor  is  property.  .  .  .  The  right  to  make  it  available  is  next  in  im- 
portance to  the  rights  of  life  and  liberty." 

In  YIck  Wo  V.  Hopkins,  118  U.  S.  3,^6,  .369  (1885),  Matthews,  J.,  for  the  court, 
said :  "  The  Fourteenth  Amendment  to  the  Constitution  is  not  confined  to  the  protec- 
tion of  citizens.  It  says:  'Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws.'  These  provisions  are  universal  in  their  application,  to 
all  persons  within  the  territorial  jurisdiction,  without  regard  to  any  differences  of  race, 
of  color,  or  of  nationality;  and  the  equal  protection  of  the  laws  is  a  pledge  of  the  pro- 
tection of  equal  laws.  It  is  accordingly  enacted  by  §  1977  of  the  Revised  Statutes, 
that  'all  persons  within  the  jurisdiction  of  tlie  United  States  shall  have  the  same  right 
in  every  State  and  Territory  to  make  and  enforce  contracts,  to  sue,  be  parties,  give 
evidence,  and  to  the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the  security 
of  persons  and  property  as  is  enjoyed  by  white  citizens  and  shall  be  subject  to  like  pun- 
ishment, pains,  penaltie.s,  taxes,  licenses,  and  exactions  of  every  kind,  and  to  no  otlier.' 
The  questions  we  have  to  consider  and  decide  in  these  cases,  therefore,  are  to  be  treated 
as  involving  the  rights  of  every  citizen  of  the  United  States  equally  with  tliose  of  the 
strangers  and  aliens  who  now  invoke  the  jurisdiction  of  the  court. 

"  It  is  contended  on  the  part  of  the  petitioners,  that  the  ordinances  for  violations  of 
which  they  are  severally  sentenced  to  imprisonment,  are  void  on  their  face,  as  being 
within  the  prohibitions  of  the  Fourteenth  Amendment ;  and,  in  the  alternative,  if  not 
so,  that  they  are  void  by  reason  of  their  administration,  operating  unequally,  so  as  to 
punish  in  the  present  petitioners  what  is  permitted  to  others  as  lawful,  without  any 
distinction  of  circumstances,  —  an  unjust  and  illegal  discrimination,  it  is  claimed,  which, 
though  not  made  expressly  by  the  ordinances,  is  made  possible  by  them."  —  Ed. 


^  Intomi't  iQj)'  \^ 

X,,..^>«t-        oKarxA^../^       "iCtx^oC^      V^A/SArc_>v     \>-«^v^ 


tenced  to  pay  a  fine  of  $20  and  costs.  A  bill  of  exceptions  was  taken, 
and  the  case  carried  to  the  Supreme  Court  of  Iowa,  and  that  court 
aftirmed  the  indo;ment  of  the  Circuit  Court  and  rendered  a  judgment 


ot  error,  was  in  violation  oi  me  ruuitccn^Lx  x^.x^w., ^..„  „..  ...v.  v..x^.x- 

stitution.  .   .   , 

Mr.  W.  T.  Dittoe,  for  the  plaintiff  in  error;  3Ir.  11.  O'Connor, 
Attornej'-General  of  Iowa,  for  the  State,  contra. 

Mr.  Justice  Miller,  after  stating  the  case,  delivered  the  opinion  of 
the  court,  as  follows  : 

The  case  has  been  submitted  to  us  on  printed  argument.  That  on 
the  part  of  the  plaintiff  in  error  has  taken  a  very  wide  range,  and  is 
largely  composed  of  the  arguments  familiar  to  all,  against  the  right  of 
the  States  to  regulate  traffic  in  intoxicating  liquors.  So  far  as  this 
argument  deals  with  the  mere  question  of  regulating  this  traffic,  or 
even  its  total  prohibition,  as  it  may  have  been  affected  by  anything  in 
the  Federal  Constitution  prior  to  the  recent  amendments  of  that  instru- 
ment, we  do  not  propose  to  enter  into  a  discussion.  Up  to  that  time  it 
had  been  considered  as  falling  within  the  police  regulations  of  the 
States,  left  to  their  judgment,  and  subject  to  no  other  limitations  than 
such  as  were  imposed  by  the  State  Constitution,  or  by  the  general 
principles  supposed  to  limit  all  legislative  power.  It  has  never  been 
seriouslv  contended  that  such  laws  raised  anj'  question  growing  out  of 
the  Constitution  of  the  United  States. 


^^.<  .   -  -  -'' 

•   .    t  ;, 

a.J f      .'-x>  f  V-  ^  ' 

>/       >^jL>.v^JL> 

V  '^  i  .    u  r 

j;^>    ^.>r,; 

">        y  >■ 


■''^iV^-^^V^fi/^ 


If' 


mentioned  in  said  information  he  did  sell  and  deliver  to  one  Timothj' 
Hicke}'  one  glass  of  intoxicating  liquor  called  whiskey,  and  did  then  and 


1 


111  J  MA,  Mu  V.  ij.//'f.<.<.^,  no  u.  o.  ODD, -Jba  (i»»o),  MATTHEWS,  J.,  t'or  the  court, 
said  :  "  The  Fourteenth  Amendincnt  to  the  Coustitution  is  not  confined  to  the  protec- 
tion of  citizens.  It  says:  'Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law;  nor  deny  to  any  person  within  its  jurisdiction  the 
e>iual  protection  of  the  laws.'  These  i)rovisions  are  universal  in  their  application,  to 
all  persons  within  the  territorial  jurisdiction,  without  regard  to  any  differences  of  race, 
of  color,  or  of  nationality ;  and  the  equal  protection  of  the  laws  is  a  pledge  of  the  pro- 
tection of  equal  laws.  It  is  accordingly  enacted  by  §  1977  of  the  Kevised  Statutes, 
that  'all  persons  within  tlie  jurisdiction  of  the  United  States  shall  liavc  tlie  same  right 
in  every  State  and  Territory  to  make  and  enforce  contracts,  to  sue,  be  parties,  give 
evidence,  and  to  the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the  security 
of  persons  and  property  as  is  enjoyed  by  white  citizens  aiul  shall  be  subject  to  like  pun- 
ishment, pains,  penalties,  taxes,  licenses,  and  exactions  of  every  kind,  and  to  no  otlier.' 
The  questions  we  have  to  consider  and  decide  in  these  cases,  therefore,  are  to  be  treated 
as  involving  the  riglits?  of  every  citizen  of  the  United  States  equally  with  those  of  the 
strangers  and  aliens  who  now  invoke  the  jurisdiction  of  the  court. 

"It  is  contended  on  the  part  of  the  petitioners,  that  the  ordinances  for  violations  of 
which  thoy  are  severally  sentenced  to  imprisonment,  are  void  on  their  face,  as  being 
within  the  prohibitions  of  the  Fourteenth  Amendment ;  and,  in  the  alternative,  if  not 
so,  that  they  are  void  by  reason  of  their  administration,  operating  unequally,  so  as  to 
punish  in  the  present  petitioners  what  is  permitted  to  others  as  lawful,  without  any 
distinction  of  circumstances,  —  an  unjust  and  illegal  discrimination,  it  is  claimed,  which, 
though  not  made  expressly  by  the  ordinances,  is  made  possible  by  them."  —  Ed. 


CHAP.  IV.]  BARTEMEYER   V.   IOWA.  533 

defendant  alleges  that  he  committed  no  crime  known  to  the  law  b}-  the 
selling  of  the  intoxicating  liquor  hereinbefore  described  to  said  Hickey, 
for  the  reason  that  he,  the  defendant,  was  the  lawful  owner,  holder,  and 
possessor,  in  the  State  of  Iowa,  of  said  property,  to  wit,  said  one  glass 
of  intoxicating  liquor,  sold  as  aforesaid  to  said  Hickey,  prior  to  the 
day  on  which  the  law  was  passed  under  which  these  proceedings  are 
instituted  and  prosecuted,  known  as  the  Act  for  the  Suppression  of 
Intemperance,  and  being  chapter  sixtj'-four  of  tlie  revision  of  1860 ; 
and  that,  prior  to  the  passage  of  said  Act  for  the  Suppression  of 
Intemperance,  he  was  a  citizen  of  the  United  States  and  of  the  State 
of  Iowa." 

Without  any  evidence  whatever  the  case  was  submitted  to  the  court 
on  this  written  plea,  the  parties  waiving  a  jury,  and  a  judgment  was 
rendered  that  the  defendant  was  guilty  as  charged,  and  lie  was  sen- 
tenced to  pa}^  a  fine  of  $20  and  costs.  A  bill  of  exceptions  was  taken, 
and  the  case  carried  to  the  Supreme  Court  of  Iowa,  and  that  court 
affirmed  the  judgment  of  the  Circuit  Court  and  rendered  a  judgment 
for  costs  against  the  defendant,  who  now  brought  the  case  here  on 
error. 

There  was  sufficient  evidence  that  the  main  ground  relied  on  to 
reverse  the  judgment  in  the  Supreme  Court  of  Iowa  was,  that  the  Act 
of  the  Iowa  Legislature  on  which  the  prosecution  was  based,  was  in 
violation  of  the  Constitution  of  the  United  States.  .  .  . 

The  case  was  submitted  on  printed  arguments  some  time  ago,  and 
Mdien  the  Slaughter- Ho  use  Cases,  reported  in  16th  Wallace,  36,  were 
argued  ;  the  position  of  the  plaintiff  in  error  in  this  case  being,  as  it 
partly  was  in  those,  that  the  Act  of  the  State  legislature,  the  maiiv- 
tenance  of  which  by  the  courts  below  was  the  ground  of  the  writ 
of  error,  was  in  violation  of  the  Fourteenth  Amendment  to  the  Con- 
stitution. .   .  . 

3f):  W.  T.  DUtoe,  for  the  plaintiff  in  error;  3Ir.  II.  O'Connor, 
Attorney-General  of  Iowa,  for  the  State,  contra. 

Mr.  Justice  IMiller,  after  stating  the  case,  delivered  the  opinion  of 
the  court,  as  follows  : 

The  case  has  been  sul)mitted  to  us  on  printed  argument.  That  on 
the  part  of  the  plaintiff  in  error  has  taken  a  very  wide  range,  and  is 
largely  composed  of  the  arguments  familiar  to  all,  against  the  right  of 
the  States  to  regulate  traffic  in  intoxicating  liquors.  So  far  as  this 
argument  deals  with  the  mere  question  of  regulating  this  traffic,  or 
even  its  total  prohibition,  as  it  may  have  been  affected  by  anything  in 
the  Federal  Constitution  prior  to  the  recent  amendments  of  tliat  instru- 
ment, we  do  not  propose  to  enter  into  a  discussion.  Up  to  that  time  it 
had  been  considered  as  falling  within  the  police  regulations  of  tlie 
States,  left  to  their  judgment,  and  subject  to  no  other  limitations  than 
such  as  were  imposed  b}'  the  State  Constitution,  or  by  the  general 
principles  supposed  to  limit  all  legislative  power.  It  has  never  been 
seriously  contended  that  sncli  laws  raised  anj'  question  growing  out  of 
the  Constitution  of  the  United  States. 


534  BARTEMEYER  V.    IOWA,  [CHAP.  IV. 

But  the  case  before  us  is  supposed  b}-  counsel  of  the  plaintiff  in 
error  to  present  a  violation  of  the  Fourteenth  Amendment  of  the  Con- 
stitution, on  the  ground  that  the  Act  of  the  Iowa  Legislature  is  a 
violation  of  the  privileges  and  immunities  of  citizens  of  the  United 
States  which  that  amendment  declares  shall  not  be  abridged  b}'  the 
States ;  and  that  in  his  case  it  deprives  him  of  his  property-  without 
due  process  of  law. 

As  regards  both  branches  of  this  defence,  it  is  to  be  observed  that 
the  statute  of  Iowa,  which  is  complained  of,  was  in  existence  long 
before  the  amendment  of  the  Federal  Constitution,  which  is  thus 
invoked  to  render  it  invalid.  Whatever  were  the  privileges  and  immu- 
nities of  Mr.  Barteme3'er,  as  the}'  stood  before  that  amendment,  under 
the  Iowa  statute,  they  have  certainly  not  been  abridged  b}'  any  action 
of  the  State  legislature  since  that  amendment  became  a  part  of  tiie 
Constitution.  And  unless  that  amendment  confers  privileges  and  im- 
munities which  he  did  not  previousl}^  possess,  the  argument  fails.  But 
the  most  liberal  advocate  of  the  rights  conferred  b}- that  amendment 
have  contended  for  nothing  more  than  that  the  rights  of  the  citizen 
previously  existing,  and  dependent  wiioUy  on  State  laws  for  their 
recognition,  are  now  placed  under  the  protection  of  the  Federal  govern- 
ment, and  are  secured  by  the  Federal  Constitution.  The  weight  of 
authority  is  overwhelming  that  no  such  immunity  has  heretofore  existed 
as  would  prevent  State  legislatures  from  regulating  and  even  prohibit- 
ing the  traffic  in  intoxicating  drinks,  with  a  solitary  exception.  That 
exception  is  the  case  of  a  law  operating  so  rigidly  on  property'  in 
existence  at  the  time  of  its  passage,  absolutel}'  prohibiting  its  sale,  as 
to  amount  to  depriving  the  owner  of  his  propert}'.  A  single  case,  that 
of  Wi/nehamer  v.  T/ie  People^  3  Kernan,  48G,  has  held  that  as  to  such 
property  the  statute  would  be  void  for  that  reason.  But  no  case  has 
held  that  such  a  law  was  void  as  violating  the  privileges  or  immunities 
of  citizens  of  a  State  or  of  the  United  States.  If,  however,  such 
a  proposition  is  seriousl}"  urged,  we  think  that  the  right  to  sell  intoxi- 
cating liquors,  so  far  as  such  a  right  exists,  is  not  one  of  the  rights 
growing  out  of  citizenship  of  the  United  States,  and  in  this  regard  the 
case  falls  within  the  principles  laid  down  by  this  court  in  the  Slaughter- 
Mouse  Cases,  16  Wallace,  36. 

But  if  it  were  true,  and  it  was  fairl}'  presented  to  us,  that  the 
defendant  was  the  owner  of  the  glass  of  intoxicating  liquor  which  he 
sold  to  Hicke}',  at  the  time  that  the  State  of  Iowa  first  imposed  an 
absolute  prohibition  on  the  sale  of  such  liquors,  then  we  concede  that 
two  ver}'  grave  questions  would  arise,  namely  :  1.  Whether  this  would 
be  a  statute  depriving  him  of  his  propert}'  without  due  process  of  law  ; 
and  secondl}',  whether  if  it  were  so,  it  would  l)e  so  far  a  violation  of  the 
Fourteenth  Amendment  in  that  regard  as  would  call  for  judicial  action 
by  this  court  ? 

Both  of  these  questions,  whenever  tliey  ma}'  be  presented  to  us,  are 
of  an  importance  to  require  the  most  careful  and  serious  consideration. 


I 


CHAP.  IV.]  BARTEMEYEK   V.   IOWA.  535 

The}'  are  uot  to  be  liglitly  treated,  iior  are  we  authorized  to  make  an}- 
advances  to  meet  them  until  we  are  required  to  do  so  by  the  duties  of 
our  position. 

In  the  ease  before  us,  tlie  Supreme  Court  of  Iowa,  whose  judgment 
we  are  called  on  to  review,  did  not  consider  it.  They  said  that  the 
record  did  not  present  it. 

It  is  true  the  bill  of  exceptions,  as  it  seems  to  us,  does  show  that  the 
defendant's  plea  was  all  the  evidence  given,  but  this  does  not  remove 
the  difficult}'  in  our  minds.  The  plea  states  that  the  defendant  was  the 
owner  of  the  glass  of  liquor  sold  prior  to  the  passage  of  the  law  under 
which  the  proceedings  against  him  were  instituted,  being  chapter  sixty- 
four  of  the  revision  of  1860. 

If  this  is  to  be  treated  as  an  allegation  that  the  defendant  was  the 
owner  of  that  glass  of  liquor  prior  to  1860,  it  is  insufficient,  because  the 
revision  of  the  laws  of  Iowa  of  1860  was  not  an  enactment  of  new 
laws,  but  a  revision  of  those  previously  enacted  ;  and  there  has  been  in 
existence  in  the  State  of  Iowa,  ever  since  the  code  of  1851,  a  law 
strictly  prohibiting  the  sale  of  such  liquors  ;  the  Act  in  all  essential 
particulars  under  which  the  defendant  was  prosecuted,  amended  in 
some  immaterial  points.  If  it  is  supposed  that  the  averment  is  helped 
by  the  statement  that  he  owned  the  liquor  before  the  law  was  passed, 
the  answer  is  that  this  is  a  mere  conclusion  of  law.  He  should  have 
stated  when  he  became  the  owner  of  the  liquor,  or  at  least  have  fixed 
a  date  when  he  did  own  it,  and  leave  the  court  to  decide  when  the  law 
took  effect,  and  apply  it  to  his  case.  But  the  plea  itself  is  merely 
argumentative,  and  does  not  state  the  ownership  as  a  fact,  but  says  he 
is  not  guilty  of  any  offence,  because  of  such  fact. 

If  it  be  said  that  this  manner  of  looking  at  the  case  is  narrow  and 
technical,  we  answer  that  the  record  affords  to  us  on  its  face  the  strongest 
reason  to  believe  that  it  has  been  prepared  from  the  beginning,  for  the 
purpose  of  obtaining  the  opinion  of  this  court  on  important  constitu- 
tional questions  without  the  actual  existence  of  the  facts  on  which  such 
questions  can  alone  arise. 

It  is  absurd  to  suppose  that  the  plaintiff,  an  ordinary  retailer  of 
drinks,  could  have  proved,  if  required,  that  he  had  owned  that  par- 
ticular glass  of  whiskey  prior  to  the  prohibitory  liquor  law  of  1851. 

The  defendant,  from  his  first  appearance  before  the  justice  of  the 
jDcace  to  his  final  argument  in  the  Supreme  Court,  asserted  in  the 
record  in  various  forms  that  the  statute  under  which  he  was  prosecuted 
was  a  violation  of  the  Constitution  of  the  United  States.  The  act  of 
the  prosecuting  attorney,  under  these  circumstances,  in  going  to  trial 
without  any  replication  or  denial  of  the  plea,  which  was  intended  mani- 
festly to  raise  that  question,  but  which  carried  on  its  face  the  strongest 
probability  of  its  falsehood,  satisfies  us  that  a  moot  case  was  delib- 
erately made  up  to  raise  the  particular  point  when  the  real  facts  of  the 
case  would  not  have  done  so.  As  the  Supreme  Court  of  Iowa  did  not 
consider  this  question  as  raised  by  the  record,  and  passed  no  opinion 


536  BAKTEMEYEK  V.    IOWA.  [CHAP.  IV. 

on  it,  we  do  not  feel  at  liberty,  under  all  the  circumstances,  to  pass  on 
it  on  this  record. 

The  other  errors  assigned  being  found  not  to  exist,  the  judgment  of 
the  Supreme  Court  of  Iowa  is  aftlrmed. 

[Jl'Sticks  Buauley  and  Field  read  concurring  opinions,  restating  the 
views  of  the  minority  in  the  Slaughter -Ho  use  (Jases.  The  former, 
speaking  for  himself  and  Justices  Field  and  Swayne,  said  :  .  .  .  "  By 
that  portion  of  the  Fourteenth  Amendment  by  which  no  State  may 
make  or  enforce  any  law  which  shall  abridge  the  privileges  and  immu- 
nities of  citizens  of  the  United  States,  or  take  life,  libert}',  or  property', 
without  due  process  of  law,  it  has  now  become  the  fundamental  law  of 
this  countiy  that  life,  liberty,  and  property  (which  include  '  the  pursuit 
of  happiness ')  are  sacred  rights,  which  the  Constitution  of  the  United 
States  guarantees  to  its  humblest  citizen  against  oppressive  legislation, 
whether  national  or  local,  so  that  he  cannot  be  deprived  of  them  with- 
out due  process  of  law.  The  monopoly  created  by  the  Legislature  of 
Louisiana,  which  was  under  consideration  in  the  SlauaJitcr-IIouse 
Cases,  was,  in  my  judgment,  legislation  of  this  sort  and  obnoxious  to 
this  objection.  But  police  regulations,  intended  for  the  preservation  of 
the  public  health  and  the  public  order,  are  of  an  entirely  different  char- 
acter. So  much  of  the  Louisiana  law  as  partook  of  this  character  was 
ne^•er  objected  to.  It  was  the  unconscional)le  monopoly,  of  which  the 
police  regulation  was  a  mere  pretext,  that  was  deemed  by  the  dissent- 
ing members  of  the  court  an  invasion  of  the  riglit  of  the  citizen  to 
pursue  his  lawful  calling.  A  claim  of  ri^lit  to  pursue  an  unlawful  call- 
ingstands  on  very  different  grounds.  oceu[)ying  the  same  [)1:itform__as 
does  a  claim  of  right  to  disregard  license  laws  and  to  usurp  public 
franchises.  It  is  greatly  to  l)e  regretted,  as  it  seems  to  me,  that  this 
distinction  was  lost  sight  of  (as  I  think  it  was)  in  the  decision  of  the 
L -L  court  referred  to." 

-6  LAuAX..      ]\Jr_  Justice  Field  said:  .  .  .  '^  No  one  has  ever  pretended,  that  I       P 

tJo-t  k\    ^  a-wariLHf,  that  the  Fourteenth  Amendj^nent.iiiterferes'in  any  Inspect 

»        with  the  police  power  of  the  State.  ...  It  was  because  the  Act  of 

Louisiana  transcended  the  limits  of  police  regulation,  and  asserted  a 

^"^^^         ""power  in  the  State  to  farm  out  the  ordinar}'  avocations  of  life,  that  dis- 

-<*''»^^^         sent  was  made  to  the  judgment  of  the  court  sustaining  the  validity  of 

^♦>«^  Ja/l^the  Act."i] 

kTN^«jusA./V  /'•;>-*'        ^  See  Pomeroy's  Coiistit^ional  Law  (Bennett's  ed.)  s.  256^ e.  —  Ed. 


CHAP.  IV.]       butchers'   UNION   CO.    V.   CRESCENT   CITY   CO.  537 


BUTCHERS'    UNION    SLAUGHTER-HOUSE,    &c.,    COMPANY 
V.  CRESCENT  CITY,  &c.,  SLAUGHTER-HOUSE  COMPANY. 

Supreme  Couut  of  the  United  States.     1883. 

[Ill  U.S.  74G.] 

In  18G9,  the  Legislature  of  Louisiana  granted  the  appellee  exclusive 
privileges  for  stock-landing  and  slaughter-houses,  at  New  Orleans  for 
twenty-five  years,  which  were  sustained  by  this  court  in  the  Slaughter- 
House  Cases,  IG  Wall.  3G.  In  1881,  under  a  provision  of  the  State 
Constitution  of  1879,  the  municipal  authorities  granted  privileges  for 
slaughter-houses  and  stock-landing  at  New  Orleans  to  the  appellants. 
The  appellee  as  plaintiff  below  filed  its  bill  in  the  Circuit  Court  to  re- 
strain the  appellants  from  exercising  the  privileges  thus  conferred.  A 
preliminary  injunction  was  granted,  which,  on  hearing,  was  made  per- 
petual. From  this  decree  the  defendants  below  appealed.  The  legis- 
lation and  other  facts  bearing  upon  the  issues  are  stated  in  the  opinion 
of  the  court. 

3Ii\  Ji.  H.  Forman,  for  appellant. 

3L\  Thomas  J.  Semmes,  for  appellee. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  the  Circuit  Court  for  the  Eastern  District  of 
Louisiana. 

The  appellee  brought  a  suit  in  the  Circuit  Court  to  obtain  an  injunc- 
tion against  the  appellant  forbidding  the  latter  from  exercising  the  busi- 
ness of  butchering,  or  receiving  and  landing  live-stock  intended  for 
butchering,  within  certain  limits  in  the  parishes  of  Orleans,  Jefferson, 
and  St.  Bernard,  and  obtained  such  injunction  b}'  a  final  decree  in  that 
court. 

The  ground  on  which  this  suit  was  brought  and  sustained  is  that  the 
plaintiffs  had  the  exclusive  right  to  have  all  such  stock  landed  at  their 
stock-Tanding  place,  and  butchered  at  their  slaughter-house,  by  virtue 
of  an  Act  of  the  General  Assembly  of  Louisiana,  approved  March  8th, 
1869,  entitled,  "  An  Act  to  protect  the  health  of  the  City  of  New  Or- 
leans, to  locate  the  stock-landing  and  slaughter-houses,  and  to  incor- 
porate the  Crescent  City  Live-Stock  Landing  and  Slaughter-IIouse 
Compan3\" 

An  examination  of  that  statute,  especiall}'  of  its  fourth  and  fifth  sec- 
tions, leaves  no  doubt  that  it  did  grant  such  an  exclusive  right. 

The  fact  that  it  did  so,  and  that  this  was  conceded,  was  the  basis  of 
the  contest  in  this  court  in  the  Slaughter- House  Cases,  16  Wall.  36,  in 
which  the  law  was  ass.ailed  as  a  monopoh'  forbidden  by  the  Thirteenth 
and  Fourteenth  Amendments  to  the  Constitution  of  the  United  States, 
and  these  amendments  as  well  as  the  Fifteenth,  came  for  the  first  time 
before  this  court  for  construction.  The  constitutional  power  of  the 
State  to  enact  the  statute  was  upheld  by  this  court. 


53S  butchers'    union   CO.    v.   crescent   city   CO.       [chap.  IV. 

This  power  was  placed  by  the  court  in  that  case  expressl}'  on  the 
ground  that  it  was  the  exercise  of  the  poUce  power  which  had  remained 
•with  the  States  in  the  formation  of  the  original  Constitution  of  tlie 
United  States,  and  had  not  been  taken  away  by  the  amendments 
adopted  since. 

Citing  the  definition  of  this  power  from  Cliancellor  Kent,  it  declares 
that  the  statute  in  question  came  within  it.  "  Unwholesome  trades, 
slaughter-houses,  operations  offensive  to  the  senses,  the  deposit  of 
powder,  the  application  of  steam-power  to  propel  cars,  the  building 
with  combustible  materials,  and  the  burial  of  the  dead,  may  all"  (he 
says)  "be  interdicted  by  law  in  the  midst  of  dense  masses  of  popula- 
tion, on  the  general  and  rational  principle  that  every  person  ought  so 
to  use  his  propert}'  as  not  to  injure  his  neighbors  ;  and  that  private 
interests  must  be  made  subservient  to  the  general  interest  of  the  com- 
munity." 2  Kent's  Commentaries,  340;  IG  Wall.  62.  In  this  latter 
case  it  was  added  that  "the  regulation  of  the  place  and  manner  of 
conducting  the  slaughtering  of  animals,  and  the  business  of  butchering 
within  a  city,  and  the  inspection  of  the  animals  to  be  killed  for  meat, 
and  of  the  meat  afterwards,  are  among  the  most  necessar}'  and  frequent 
exercises  of  this  power." 

But  in  the  year  1879  the  State  of  Louisiana  adopted  a  new  Constitu- 
tion, in  which  were  the  following  articles  : 

"  Article  248.  The  police  juries  of  the  several  parishes,  and  the  con- 
stituted authorities  of  all  incorporated  municipalities  of  the  State,  shall 
alone  have  the  power  of  regulating  the  slaughtering  of  cattle  and  other 
live-stock  within  their  respective  limits  ;  provided  no  monopolj'  or  ex- 
clusive privilege  shall  exist  in  this  State,  nor  such  business  be  restricted 
to  the  land  or  houses  of  any  individual  or  corporation  ;  provided  the 
ordinances  designating  places  for  slaughtering  shall  obtain  the  concur- 
rent approval  of  the  Board  of  Health  or  other  sanitary  organization. 

"Article  258.  .  .  .  The  monopoly'  features  in  the  charter  of  an}-  cor- 
poration now  existing  in  the  State,  save  such  as  may  be  contained  in 
the  charters  of  railroad  companies,  are  hereby  abolished." 

Under  the  authority  of  these  articles  of  the  Constitution  the  munici- 
pal authorities  of  the  city  of  New  Orleans  enacted  ordinances  which 
opened  to  general  competition  the  right  to  build  slaughter-houses,  estab- 
lish stock-landings,  and  engage  in  the  business  of  butchering  in  that 
city  under  regulations  established  by  those  ordinances,  but  which  were 
in  utter  disregard  of  the  monopoly  granted  to  the  Crescent  City  Com- 
pany, and  which  in  effect  repealed  the  exclusive  grant  made  to  that 
corapanj-  by  the  Act  of  1869. 

The  appellant  here,  the  Butchers'  Union  Slaughter-House  Company, 
availing  themselves  of  this  repeal,  entered  upon  the  business,  or  were 
about  to  do  so,  by  establishing  their  slaughter-house  and  stock-landing 
within  the  limits  of  the  grant  of  the  Act  of  1869  to  the  Crescent  City 
Com  pan}'. 

Both  these  corporations,  organized  under  the  laws  of  Louisiana  and 


CHAP.  IV.]        butchers'    UNION    CO.    V.    CRESCENT   CITY    CO.  539 

CVv^-ArVT*J!-^'^-^  CTMJL       Aj^AjylX  aXtX/LA      ^c^-^-^-    ^-vx->*^^ 


538  butchers'    union   CO.    v.   crescent   city   CO.       [CHA.P.  IV. 


0 

vi'  -Yient  t'  '  '. 

^     '  ■       :■        ■  •  1.,,-.     inMll!.-/i- 


la  auU 


1 


CHAP.  IV.]       butchers'   UNION   CO.   V.    CKESCENT   CITY   CO.  539 

doing  business  in  that  State,  were  citizens  of  the  same  State,  and  could 
not,  in  respect  of  that  citizenship,  sue  each  otlier  in  a  court  of  tlie 
United  States. 

The  Crescent  Cit}-  Compan}-,  however,  on  the  allegation  that  these  con- 
stitutional provisions  of  1879  and  the  subsequent  ordinances  of  the  cit}-, 
were  a  violation  of  their  contract  with  the  State  under  the  Act  of  1869, 
brought  this  suit  in  the  Circuit  Court  as  arising  under  the  Constitution 
of  the  United  "States,  art.  1,  sec.  10.  That  court  sustained  the  view  of 
the  plaintiff  below,  and  held  that  the  Act  of  1869  and  the  acceptance 
of  it  by  the  Crescent  Cit}-  Compan}-,  constituted  a  contract  for  the  ex- 
clusive right  mentioned  in  it  for  twenty-five  years  ;  that  it  was  within 
the  power  of  the  Legislature  of  Louisiana  to  make  that  contract,  and 

^  t,M^  |yv^j^v^<.^  ^  J7x.^wr/v  it^  :m^ 

IrVxX     ^.     c^Tix::^    00.^0..^    'V^r/v^>v     ^ 

''^^^      O^oJu^        rarivoUUi     /ba^o,^      OC     ^  «x^oO-     /v^- 

^  .-,  v^i  giaijc  siumar  privileges  to  others.     It  concedes  that  such 

a  law,  so  long  as  it  remains  on  the  statute-book  as  the  latest  expression 
of  the  legislative  will,  is  a  valid  law,  and  must  be  obeyed,  which  is  all 


OoS  BUTCHERS'    UNION   CO.    V.   CRESCENT   CITY   CO.       [CH.A.P.  IV. 


< "? 


.-rz-'.-f      o       >,  .1 ).. 


->v 


1^^ 

-_iv-K^   -"^^^^i 

■^     ^.^/^-^^.rX3    / 

1      4 

)  ••'  .  * 

>  -c-'-J_i.^^ -^^3^ 

^^/ 

-        >f          -^r 

xA^> 


.1-:^  aua 


CHAP.  IV.]        butchers'   UNION    CO.    V.    CEESCENT   CITY   CO.  539 

(loiug  business  in  that  State,  were  citizens  of  the  same  State,  and  could 
not,  in  respect  of  that  citizenship,  sue  each  other  in  a  court  of  tlie 
United  States. 

The  Crescent  Cit}'  Company,  however,  on  the  allegation  that  these  con- 
stitutional provisions  of  1879  and  the  subsequent  ordinances  of  the  cit}', 
were  a  violation  of  their  contract  with  tlie  State  under  the  Act  of  1869, 
brought  this  suit  in  the  Circuit  Court  as  arising  under  the  Constitution 
of  the  United  States,  art.  1,  sec.  10.  That  court  sustained  the  view  of 
the  plaintiff  below,  and  held  that  the  Act  of  1869  and  the  acceptance 
of  it  by  the  Crescent  City  Company,  constituted  a  contract  for  the  ex- 
clusive right  mentioned  in  it  for  twenty-five  years  ;  that  it  was  within 
the  power  of  the  Legislature  of  Louisiana  to  make  that  contract,  and 
as  the  constitutional  provisions  of  1879  and  the  subsequent  ordinances 
of  the  city  impaired  its  obligation,  they  were  to  that  extent  void. 

No  one  can  examine  the  provisions  of  the  Act  of  1869  with  the  knowl- 
edge that  they  were  accepted  by  the  Crescent  City  Company,  and  so  far 
acted  on  that  a  ver^-  large  amount  of  money  was  expended  in  a  vast 
slaughter-house,  and  an  equally  extensive  stock-yard  and  landing-place, 
and  hesitate  to  pronounce  that  in  form  they  have  all  the  elements  of  a 
contract  on  sufficient  consideration. 

It  admits  of  as  little  doubt  that  the  ordinance  of  the  city  of  New 
Orleans,  under  the  new  Constitution,  impaired  the  supposed  obligation 
imposed  by  those  provisions  on  the  State,  by  taking  away  the  exclusive 
right  of  the  company  granted  to  it  for  twentj'-five  years,  which  was  to 
the  compan}'  the  most  valuable  thing  supposed  to  be  secured  to  it  b}' 
the  statutory  contract. 

We  do  not  think  it  necessary  to  spend  time  in  demonstrating  either 
of  these  propositions.     We  do  not  believe  they  will  be  controverted. 

The  appellant,  however,  insists  that,  -so  far  as  the  Act  of  1869  par- 
takes of  the  nature  of  an  irrepealable  contract,  the  legislature  exceeded 
its  authority,  and  it  had  no  power  to  tie  the  hands  of  the  legislature  in 
the  future  from  legislating  on  that  subject  without  being  bound  by  the 
terras  of  the  statute  then  enacted.  This  proposition  presents  the  real 
point  in  the  case. 

Let  us  see  clearly  what  it  is. 

It  does  not  deny  the  power  of  that  legislature  to  create  a  corporation, 
with  power  to  do  the  business  of  landing  live-stock  and  providing  a 
place  for  slaughtering  them  in  the  city.  It  does  not  deny  the  power  to 
locate  the  place  where  this  shall  be  done  exclusively.  It  does  not  deny 
even  the  power  to  give  an  exclusive  right,  for  the  time  being,  to  particu- 
lar persons  or  to  a  corporation  to  provide  this  stock-landing  and  to 
establish  this  slaughter-house. 

But  it  does  denj'  the  power  of  that  legislature  to  continue  this  right 
so  that  no  future  legislature  nor  even  the  same  bod}'  can  repeal  or 
modify  it,  or  grant  similar  privileges  to  others.  It  concedes  that  such 
a  law,  so  long  as  it  remains  on  the  statute-book  as  the  latest  expression 
of  the  legislative  will,  is  a  valid  law,  and  must  be  obeyed,  which  is  all 


tu^ 


54:0  butchers'  union  co.  v.  crescent  city  CO.     [chap.  iv. 

that  was  decided  by  this  court  in  the  Slaurjlder- House  Cases.  But  it 
asserts  the  right  of  the  legislature  to  repeal  such  a  statute,  or  to  make 
a  new  one  iuconsistent  with  it,  whenever,  in  the  wisdom  of  such  legis- 
lature, it  is  for  the  good  of  the  public  it  should  be  done. 

Nor  does  this  proposition  contravene  the  established  prniciple  that 
the  legislature  of  a  State  may  make  contracts  on  many  subjects  which 
will  bind  it,  and  will  bind  succeeding  legislatures  for  the  time  the  con- 
tract has  to  run,  so  that  its  provisions  can  neither  be  repealed  nor  its 
obligation  impaired.  The  examples  are  numerous  where  this  has  been 
done  and  the  contract  upheld. 

The  denial  of  this  power,  in  the  present  instance,  rests  upon  the 
ground  that  the  power  of  the  legislature  intended  to  be  suspended  is 
one  so  indispensable  to  the  public  welfare  that  it  cannot  be  bargained 
away  by  contract.  It  is  that  well-known  but  undefined  power  called  the 
police  power.  We  have  not  found  a  better  definition  of  it  for  our  pres- 
ent purpose  than  the  extract  from  Kent's  Commentaries  in  the  earlier 
part  of  this  opinion.     "  The  power  to  regulate  unwholesome  trades, 

H/t/\j  slaughter-bouses,  operations  offensive  to  the  senses,"  there  mentioned, 

'         points  unmistakably  to  the  powers  exercised  b}-  the  Act  of  1869,  and 

the  ordinances  of  the  city  under  the  Constitution  of  1879.     While  we 

are  not  prepared  to  say  that  the  legislature  can  make  valid  contracts  on 

no  subject  embraced  in  the  largest  definition  of  the  police  power,  we 

^V-^M     think  that,  in  regard  to  two  subjects  so  embraced,  it  cannot,  by  any 
try     contract,  limit  the  exercise  of  those  powers  to  the  prejudice  of  the  gen- 
eral welfare.     These  are   the  public  health  and  public  morals.     The 

/i^^JbyjiVi.  preservation  of  these  is  so  necessary  to  the  best  interests  of  social  or- 
i  i  '    t<j  ganization  that  a  wise  policy  forbids  the  legislative  bod}-  to  divest  itself 

''^^\y^^'^'^^V)f  the  power  to  enact  laws  for  the  preservation  of  health  and  the  repres- 

k.  C\M^\i^^ks\o\-].  of  crime. 

iA^tCv££jiAc    ^^  cannot  be  permitted  that,  when  the  Constitution  of  a  Slate,  the 

—  ^fundamental  law  of  the  land,  has  imposed  upon  its  legislature  the  dut}' 

of  guarding,  by  suitable  laws,  the  health  of  its  citizens,  especiall}'  in 
crowded  cities,  and  the  protection  of  their  person  and  property  by  sup- 
pressing and  preventing  crime,  that  the  power  which  enables  it  to  per- 
form tills  dutj'  can  be  sold,  bargained  away,  under  any  circumstances, 
as  if  it  were  a  mere  privilege  which  the  legislator  could  dispose  of  at  his 
pleasure. 

This  principle  has  been  asserted  and  repeated  in  this  court  in  the  last 
few  years  in  no  ambiguous  terms. 

The  first  time  it  seems  to  have  been  distinctlv  and  clearly  presented, 
was  in  the  case  of  Boyd  v.  Alabama.,  94  U.  S.  645.  That  was  a  writ 
of  error  to  the  Supreme  Court  of  Alabama,  brought  by  Boyd,  who  had 
been  convicted  in  the  courts  of  that  State  of  carrj-ing  on  a  lottery  con- 
trary to  law.  In  his  defence,  he  relied  upon  a  statute  which  authorized 
lotteries  for  a  specific  purpose,  under  whicli  he  held  a  license.  The  re- 
peal of  this  statute,  which  made  his  license  of  no  avail  against  the  gen- 
eral law  forbidding  lotteries,  was  asserted  by  his  counsel  to  be  void  as 


CHAP.  IV.]        butchers'    union    CO.    V.    CRESCENT   CITY   CO.  541 

impaii-iiig  the  obligation  of  the  eontriict,  of  which  his  license  was  evi- 
dence, and  the  Supreme  Court  of  Alabama  had  in  a  previous  case  held 
it  to  be  a  contract. 

In  Boyd's  case,  however,  that  court  held  the  law  under  which  his 
license  was  issued  to  be  void,  because  the  object  of  it  was  not  expressed 
in  the  title,  as  required  by  the  Constitution  of  the  State.  This  court 
followed  that  decision,  and  affirmed  the  judgment  on  that  ground. 
.  But  in  the  concluding  sentences  of  the  opinion  by  Mr.  Justice  Field, 
the  court,  to  repel  the  inference  that  the  contract  would  have  been  irre- 
pealable,  if  the  statute  had  conformed  to  the  special  requirement  of  the 
Constitution,  said  :  ^^ 

"  We  are  not  prepared  to  admit  that  it  is  competent  for  one  legisla-  ^)xtiiiivu' 
ture,  by  any  contract  with  an  individual,  to  restrain  the  power  of  a  sub- 
sequent legislature  to  legislate  for  the  public  w-elfare,  and  to  that  end  to 
supijrcss  any  and  all  practices  tending  to  corrupt  the  public  morals," 
citing  Moore  v.  The  State,  48  Miss.  147,  and  Metropolitan  Board  of 
Excise  V.  Barrie,  34  N.  Y.  657,  663. 

This  cautionary  declaration  received  the  unanimous  concurrence  of 
the  court,  and  a  year  later  the  principle  became  the  foundation  of  the 
decision  in  the  case  of  The  Beer  Company  v.  Massachusetts,  97  U.  S. 
25,  28.  .  .  .  [Here  the  court  considers  the  case  last  named,  and  also 
Stone  \.  MississijJj^h  101  U.  S.  814,  and  fertilizing  Co.  v.  Mt/de  Park, 
97  U.  S.  659.] 

These  cases  are  all  cited  and  their  views  adopted  in  the  opinion  of 
the  Supreme  Court  of  Louisiana  in  a  suit  between  the  same  parties  in 
regai-d  to  the  same  matter  as  the  present  case,  and  which  was  brought 
to  tills  court  by  wait  of  en-or  and  dismissed  before  a  hearing  by  the 
present  appellee. 

The  result  of  these  considerations  is  that  the  Constitution  of  1879  and 
the  ordinances  of  the  city  of  New  Orleans,  which  are  comi)lained~of, 
are  not  void  as  imijairing  the  obligation  of  complainant's  contract,  and 
that  ' 

The  decree  of  the  Circuit  Court  must  he  reversed,  and  the  case  re- 
manded to  that  court  icith  directions  to  dismiss  the  hill} 

1  JfSTicEs  Field  and  Bradley  (with  the  latter  of  whom  agreed  Justices  Harlan 
and  Woods)  gave  coucurring  opinions,  iu  which  they  again  restated  the  views  of  the 
minority  in  the  S!aufjhter-House  Cases. 

Field,  J.,  said :  "...  As  in  our  intercourse  with  our  fellow-men  cei-tain  principles  of 
morality  are  assumed  to  exist,  witliout  which  society  would  be  impossible,  so  certain 
inherent  riglits  lie  at  the  foundation  of  all  action,  and  upon  a  recognition  of  tb.em  alone 
can  free  institutions  be  maintained.  These  inherent  rights  have  never  been  more  hap- 
pily expres.sed  than  iu  tlie  Declaration  of  Independence,  that  new  evangel  of  liberty  to 
the  people :  '  We  hold  these  truths  to  be  self-evident,'  —  that  is,  so  plain  that  their  truth 
is  recognized  upon  tlieir  mere  statement,  — '  that  all  men  are  endowed  '  —  not  by  edicts 
of  emperors,  or  decrees  of  Parliament,  or  acts  of  Congress,  but  'bj-  their  Creator  with 
certain  inalienable  rights,'  —  that  is,  rights  which  cannot  be  bartered  away,  or  given 
away,  or  taken  away  except  in  punishment  of  crime.  —  'and  that  among  these  are  life, 
liberty,  and  the  pursuit  of  happiness,  and  to  secure  these  '  —  not  grant  them,  but  secure 


542  BUTCIIEKS'   UNION   CO.    V.    CRESCENT   CITY   CO.       [CIIAP,  IV. 

them —'governments  are  instituted  among  men,  tlcriviiig  their  just  powers  from  the 
consent  ol"  tiio  governed.'  Among  tlicse  inalieuahle  riglits,  as  prochnmed  in  tliat  great 
document,  is  tiie  right  of  men  to  pursue  their  liappiness,  by  whicli  is  meant  the  right 
to  pursue  any  kiwful  business  or  vocation,  in  any  manner  not  inconsistent  with  the 
equal  rights  of  others,  which  may  increase  tlieir  prosperity  or  develop  their  faculties, 
so  as  to  give  to  them  tlieir  highest  enjoyment.  The  comniou  business  and  callings  of 
life,  the  ordinary  trades  and  pursuits,  which  are  innocuous  iu  themselves,  and  have  been 
followed  in  all  communities  from  time  immemorial,  must,  therefore,  be  free  in  this 
country  to  all  alike  upon  the  same  conditions.  The  right  to  pur.sue  them,  without  let 
or  hindrance,  except  that  which  is  applied  to  all  persons  of  tiie  same  age,  sex,  and  con- 
dition, is  a  distinguishing  privilege  of  citizens  of  the  United  States,  and  an  essential 
element  of  that  freedom  which  they  claim  as  their  birthright.  It  has  been  well  said 
that,  'The  property  which  every  man  has  iu  his  own  labor,  as  it  is  the  original  founda- 
tion of  all  other  property,  so  it  is  the  most  sacred  and  inviolable.  The  patrimony  of 
the  poor  man  lies  in  the  strength  and  dexterity  of  his  own  hands,  and  to  hinder  his 
employing  this  strength  and  dexterity  in  what  manner  he  thinks  proper,  without  injury 
to  his  neighbor,  is  a  plain  violation  of  this  most  sacred  property.  It  is  a  manifest  en- 
croachment upon  the  just  liberty  both  of  the  workman  and  of  those  who  might  be  dis- 
posed to  employ  him.  As  it  hinders  the  one  from  working  at  what  he  thinks  j)roper, 
so  it  hinders  the  otiiers  from  employing  whom  they  think  proper.'  —  Adam  S.mitu's 
Wealth  of  Nations,  Bk.  I.  Chap.  10.  .  .  .  The  first  section  of  the  amendment  is  stripped 
of  all  its  protective  force,  if  its  application  be  limited  to  the  privileges  and  immunities 
of  citizens  of  the  United  States  as  distinguished  from  citizens  of  the  States,  and  thus 
its  prohibition  be  extended  only  to  the  abridgment  or  impairment  of  such  rights,  as 
the  right  to  come  to  the  seat  of  government,  .  .  .  which  are  specified  iu  the  opinion  in 
the  iSlaiighier-Huuse  Cases  as  the  special  rights  of  such  citizens.  If  thus  limited,  noth- 
ing was  accomplished  by  adopting  it.  The  States  could  not  previously  have  interfered 
with  these  privileges  and  immunities,  or  any  other  privileges  and  immunities  which 
citizens  enjoyed  under  the  Constitution  and  laws  of  the  United  States.  .  .  .  Whilst, 
therefore,  I  fully  concur  in  the  decision  of  the  court  that  it  was  entirely  competent  for 
the  State  to  annul  the  monopoly  features  of  the  original  Act  incorporating  the'plaiutiff, 
I  am  of  opinion  that  the  Act,  in  creating  the  monopoly  in  an  ordinary  employment 
and  busines.s,  was  to  that  extent  against  common  right  and  void." 

Br.\dley,  J.  (speaking  also  for  Justices  HAnL.\N  and  Woods),  said  :  ..."  I  do  not 
mean  to  say  that  there  are  no  exclusive  rights  which  can  be  granted,  or  that  there  are 
not  many  regulative  restraints  on  civil  action  which  may  be  imposed  by  law.  .  .  .  But 
this  concession  does  not  in  the  slightest  degree  affect  the  proposition  (which  I  deem  a 
fundamental  one),  that  the  ordinary  pursuits  of  life,  forming  the  large  mass  of  indus- 
trial avocations,  are  and  ought  to  be  free  and  open  to  all,  subject  only  to  such  general 
regulations,  applying  equally  to  all,  as  the  general  good  may  demand;  and  the  grant 
to  a  favored  few  of  a  monopoly  in  any  of  these  common  callings  is  necessarily  an  out- 
rage upon  the  liberty  of  the  citizen  as  exhibited  in  one  of  its  most  important  aspects, 
—  the  liberty  of  pursuit.  ...  It  abridges  the  privileges  of  citizens  of  the  United  States ; 
it  deprives  them  of  a  portion  of  their  liberty  and  property  without  due  process  of  law; 
and  it  denies  to  them  the  equal  protection  of  the  laws  \1-  I  hold  that  the  liberty  of 
pursuit  —  the  right  to  follow  any  of  the  ordinary  callings  of  life  —  is  one  of  the  privi 
leges  of  a  citizen  of  the  United  States.  ...  2.  But  if  it  does  not  abridge  the  jirivileges 
and  immunities  of  a  citizen  of  the  United  States  to  prohibit  him  from  pur.suing  his 
chosen  calling,  and  giving  to  others  the  exclusive  right  of  pursuing  it,  it  certainly  does 
deprive  him  (to  a  certain  extent)  of  his  liberty;  for  it  takes  from  him  the  freedom  of 
adopting  and  following  the  pursuit  which  he  prefers-,  which,  as  already  intimated,  is 
a  material  part  of  the  liberty  of  the  citizen.  And,  if  a  man's  right  to  his  calling  i 
property,  as  many  maintain,  then  tho.se  who  had  already  adopted  the  jjrohibited  pur 
suits  in  New  Orleans,  were  deprived,  by  the  law  in  question,  of  their  property,  as  well 
as  their  liberty,  without  due  process  of  law.  3.  But  still  more  apparent  is  the  viola- 
tion, by  this  monopoly  law,  of  the  last  clause  of  the  section,  — '  no  State  shall  deny  to 
any  person  the  equal  protection  of  the  laws.'     If  it  is  not  a  denial  of  the  eijual  protection 


CHAP.  IV.]  STRAUDER   V.    WEST   VIRGINIA.  543 

^L<^  X^:jix^    ^>>^^'%,^    'CicA.^^Tt.a.    ~XXije.yu«^    va^^<x>^  /w^     /^olaaj^ 

"S^^-^^^  S^  7  M  ~  ^  "^  ? 
6^  c.  -  G^^ 


I 


State ;  that  white  men  are  so  eligible,  and  that  b^'  reason  of  his  being  a 
colored  man  and  having  been  a  slave,  he  had  reason  to  believe,  and 
did  believe,  he  could  not  have  the  full  and  equal  benefit  of  all  laws  and 
proceedings  in  the  State  of  West  Virginia  for  the  securit}-  of  his  person 
as  is  enjo^-ed  by  white  citizens,  and  that  he  had  less  chance  of  enforcing 
in  the  courts  of  the  State  his  rights  on  the  prosecution,  as  a  citizen  of 
the  United  States,  and  that  the  probabilities  of  a  denial  of  them  to  him 

of  the  laws  to  grant  to  one  man,  or  set  of  men,  the  privilege  of  following  an  ordinary 
calling  in  a  large  community,  and  to  deny  it  to  all  others,  it  is  difficult  to  under.'itand 
what  would  come  Avithin  the  constitutional  prohibition.  Monopolies  are  the  bane  of 
our  body  politic  at  the  present  day.  In  the  eager  pur.suit  of  gain  they  are  souglit  in 
every  direction.  They  exhibit  themselves  in  corners  in  the  stock  market  and  produce 
market,  and  in  many  other  ways.  If  by  legislative  enactment  they  can  be  carried  into 
the  common  avocations  and  callings  of  life,  so  as  to  cut  off  the  right  of  the  citizen  to 
choose  his  avocation,  the  right  to  earn  his  bread  by  the  trade  which  he  has  learned ; 
and  if  there  is  no  constitutional  means  of  jiutting  a  check  to  such  enormity,  I  can  only 
say  that  it  is  time  the  Constitution  was  still  further  amended.  In  my  judgment,  the 
present  Constitution  is  amply  sufficient  for  the  protection  of  the  people  if  it  is  fairly 
interpreted  and  faithfully  enforced."  —  Ed. 


^: 


542 


BUTCIIEKS'    UNION    CO.    V.    CRESCENT   CITY    CO.       [CH.VP.  IV. 


them — 'governments  are  instituted  among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed.'  Among  tiiese  inalienaldo  rights,  as  prochiimed  in  tliat  great 
document,  is  the  riijht  of  men  to  pursue  their  luippiness,  by  wiiich  is  meant  the  right 


J*^- 


r 


this  concession  does  not  in  tlie  slightest  degree  affect  the  proposition  (which  I  deem  a 
fundamental  one),  that  the  ordinary  pursuits  of  life,  forming  the  large  mass  of  indus- 
trial avocations,  are  and  ought  to  be  free  and  open  to  all,  subject  ou\y  to  sucli  general 
regulations,  applying  equally  to  all,  as  the  general  good  may  demand;  and  the  grant 
to  a  favored  few  of  a  monopoly  in  any  of  these  common  callings  is  necessarily  an  out- 
rage upon  the  liberty  of  the  citizen  as  exhibited  in  one  of  its  most  important  aspects, 
—  the  liberty  of  pursuit.  .  .  .  It  abridges  the  privileges  of  citizens  of  the  United  States ; 
it  deprives  them  of  a  portion  of  their  liberty  and  property  without  due  process  of  law; 
and  it  denies  to  them  the  equal  protection  of  the  laws  \1-  I  hold  that  the  liberty  of 
pursuit  —  the  right  to  follow  any  of  the  ordinary  callings  of  life  —  is  one  of  the  ])rivi 
leges  of  a  citizen  of  the  United  States.  ...  2.  But  if  it  does  not  abridge  tlie  privileges 
and  immunities  of  a  citizen  of  the  United  States  to  prohibit  him  from  pursuing  his 
chosen  calling,  and  giving  to  others  the  exclusive  right  of  pursuing  it,  it  certainly  does 
deprive  him  (to  a  certain  extent)  of  his  liberty;  for  it  takes  from  him  the  freedom  of 
adopting  and  following  the  pursuit  which  he  prefers;  which,  as  ali-eady  intimated,  is 
a  material  part  of  the  liberty  of  the  citizen.  And,  if  a  man's  riglit  to  his  calling 
property,  as  many  maintain,  then  those  who  had  already  adopted  the  proliibited  pur 
suits  in  New  Orleans,  were  deprived,  by  the  law  in  question,  of  their  pro])erty,  as  well' 
as  their  liberty,  without  due  process  of  law.  3.  But  still  more  apparent  is  the  viola- 
tion, by  this  monopoly  law,  of  the  last  clause  of  the  section,  — '  no  State  shall  deny  to 
any  person  the  equal  protection  of  the  laws.'    If  it  is  not  a  denial  of  the  equal  protection 


CHAP.  IV.]  STRAUDER   V.   WEST  VIRGINIA.  543 

STRAUDER  v.   WEST  VIRGINIA.  ^^{A.if^:iM'i^ 

Supreme  Court  of  the  United  States.     1879.       y'Lt'^Af  to^'^^^J^MP^ 
[100  U.  S.  303.]  ^  <^^Uudi  'WX^ 

Error  to  the  Supreme  Court  of  Appeiils  of  the  State  of  West  Z^.^  -^^^ 
Virguiia. 

The  facts  are  stated  in  the  opuiion  of  the  court. 

Mr.  Charles  Devens  and  31)\  George  0.  Davenport^  for  the  plaintiff  ^^         ^ 
in  error.  Q^j^oJm^i 

3Ir.  Rohert  White,  Attorney-General  of  West  Viro-inia,  and  Mr.  ^-^v-/?  ;  , 
James  \\ .  Green^  contra.  T ,  /      .-p 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court.  /^^^  l^  ^ 

The  plaintiff  in  error,  a  colored  man,  was  indicted  for  murder  in  the  ,^{^  (^JiiAM^'^ 
Circuit  Court  of  Ohio  County,  in  West  Virginia,  on  the  20th  of  October,  ,^;^^t;Cc</N<  qiaou 
1874,  and  upon  trial  was  convicted  and  sentenced.     The  record  was        .  "^ 

then  removed  to  the  Supreme  Court  of  the  State,  and  there  the  judg-  ^-M.'^xX.  jaOi 
ment  of  the  Circuit  Court  was  affirmed.     The  present  case  is  a  writ  of  " 

error  to  that  court,  and  it  is  now,  in  substance,  averred  that  at  the  trial 
in  the  State  court  the  defendant  (now  plaintiff  in  error)  was  denied 
rights  to  which  he  was  entitled  under  the  Constitution  and  law&  of  the 
United  States. 

In  the  Circuit  Court  of  the  State,  before  the  trial  of  the  indictment 
was  commenced,  the  defendant  presented  his  petition,  verified  b}'  his 
oath,  praying  for  a  removal  of  the  cause  into  the  Circuit  Court  of  the 
United  States,  assigning,  as  ground  for  the  removal,  that,  "  b}'  virtue 
of  the  laws  of  the  State  of  West  Virginia  no  colored  man  was  eligible 
to  be  a  member  of  the  grand  jury  or  to  serve  on  a  petit  jury  in  the 
State  ;  that  white  men  are  so  eligible,  and  that  b3'  reason  of  his  being  a 
colored  man  and  having  been  a  slave,  he  had  reason  to  believe,  and 
did  believe,  he  could  not  have  the  full  and  equal  benefit  of  all  laws  and 
proceedings  in  the  State  of  West  Virginia  for  the  securitj'  of  his  person 
as  is  enjoyed  by  white  citizens,  and  that  he  had  less  chance  of  enforcing 
in  the  courts  of  the  State  his  rights  on  the  prosecution,  as  a  citizen  of 
the  United  States,  and  that  the  probabilities  of  a  denial  of  them  to  him 

of  the  laws  to  grant  to  one  man,  or  set  of  men,  the  privilege  of  following  an  ordinary 
calling  in  a  large  community,  and  to  deny  it  to  all  other.s,  it  is  difficult  to  understand 
what  would  come  within  the  constitutional  prohibition.  Monopolies  are  the  bane  of 
our  body  politic  at  the  present  day.  In  the  eager  pursuit  of  gain  they  are  souglit  in 
every  direction.  They  exhibit  themselves  in  corners  in  the  stock  market  and  produce 
market,  and  in  many  other  ways.  If  by  legislative  enactment  they  can  be  carried  into 
the  common  avocations  and  callings  of  life,  so  as  to  cut  off  the  right  of  the  citizen  to 
choose  his  avocation,  the  right  to  earn  his  bread  by  the  trade  which  he  has  learned; 
and  if  there  is  no  constitutional  means  of  jnitting  a  check  to  such  enormity,  I  can  only 
say  that  it  is  time  the  Constitution  was  still  further  amended.  In  my  judgment,  the 
present  Constitution  is  amply  sufficient  for  the  protection  of  the  people  if  it  is  fairly 
interpreted  and  faithfully  enforced."  —  Ed. 


544  STRAUDER   V.   WEST  VIRGINIA.  [CHAP.  IV. 

as  such  citizen  on  cveiy  trial  which  might  take  pLace  on  tlic  indictment 
in  the  courts  of  the  State  were  much  more  enhanced  than  if  lie  was  a 
wliite  man."  This  petition  was  denied  by  the  State  court,  and  the 
cause  was  forced  to  trial. 

Motions  to  quash  the  venire,  "  because  the  law  under  which  it  was 
issued  was  unconstitutional,  null,  and  void,"  and  successive  motions  to 
challenge  the  array  of  the  panel,  for  a  new  trial,  and  in  arrest  of  judg- 
ment were  then  made,  all  of  which  were  overruled  and  made  by  excep- 
tions parts  of  the  record. 

Tiie  law  of  the  State  to  which  reference  was  made  in  the  petition  for 
removal  and  in  the  several  motions  was  enacted  on  the  12th  of  March, 
1873  (Acts  of  1872-73,  p.  102),  and  it  is  as  follows :  "All  white  male 
persons  who  are  twenty -one  years  of  age  and  who  are  citizens  of  this 
State  shall  be  liable  to  serve  as  jurors,  except  as  herein  provided." 
The  persons  excepted  are  State  officials. 

In  this  court,  several  errors  have  been  assigned,  and  the  controlling 
questions  underlying  them  all  are,  first,  whether,  by  the  Constitution 
and  laws  of  the  United  States,  every  citizen  of  the  United  States  has  a 
right  to  a  trial  of  an  indictment  against  him  by  a  jury  selected  and  im- 
panelled w^ithout  discrimination  against  his  race  or  color,  because  of 
race  or  color ;  and,  second,  if  he  has  such  a  right,  and  is  denied  its 
enjoyment  bj'  the  State  in  which  he  is  indicted,  may  he  cause  the  case 
to  be  remoA'ed  into  the  Circuit  Court  of  the  United  States? 

It  is  to  be  observed  that  the  first  of  these  questions  is  not  whether  a 
colored  man,  when  an  indictment  has  been  preferred  against  him,  has  a 
right  to  a  grand  or  a  petit  jury  composed  in  whole  or  in  part  of  persons 
of  his  own  race  or  color,  but  it  is  whether,  in  the  composition  or  selection 
of  jurors  by  whom  he  is  to  be  indicted  or  tried,  all  persons  of  his  race 
or  color  may  be  excluded  b}-  law,  solelj*  because  of  their  race  or  color, 
so  that  by  no  possibilit}-  can  any  colored  man  sit  upon  the  jur}'.  .  .  . 
[Sect.  1  of  the  Fourteenth  Amendment  is  here  recited.] 

This  is  one  of  a  series  of  constitutional  provisions  having  a  common 
purpose  ;  namely,  securing  to  a  race  recently  emancipated,  a  race  that 
tln-ough  many  generations  had  been  held  in  slavery,  all  the  civil  rights 
that  the  superior  race  enjoy.  The  true  spirit  and  meaning  of  the 
amendments,  as  we  said  in  the  Slaughter-House  Cases,  16  Wall.  36, 
cannot  be  understood  without  keeping  in  view  the  history  of  the  times 
when  they  were  adopted,  and  the  general  ol^jects  they  plainly  souglit  to 
accomplish.  At  the  time  when  they  were  incorporated  into  Uie  Consti- 
tution, it  required  little  knowledge  of  human  nature  to  anticipate  tliat 
those  who  had  long  been  regarded  as  an  inferior  and  subject  race  would, 
when  suddenly  raised  to  the  rank  of  citizenship,  be  looked  upon  with 
jealousy  and  positive  dislike,  and  that  State  laws  might  be  enacted  or 
enforced  to  perpetuate  the  distinctions  that  had  before  existed.  Dis- 
criminations against  them  had  been  habitual.  It  was  w^ell  known  that  in 
some  States  laws  making  such  discriminations  then  existed,  and  others 
might  well  be  expected.     The  colored  race,  as  a  race,  was  abject  and 


CHAP.  IV.]  STRAUDEE   V.   WEST    VIRGINIA.  545 

ignorant,  and  in  that  condition  was  unfitted  to  command  the  respect  of 
those  who  had  superior  intelligence.  Their  training  had  left  them  mere 
cliildren,  and  as  such  they  needed  the  protection  which  a  wise  govern- 
ment extends  to  those  who  are  unable  to  protect  themselves.  They 
especially  needed  protection  against  unfriendly  action  in  the  States 
where  the}^  were  resident.  It  was  in  view  of  these  considerations  the 
Fourteenth  Amendment  was  framed  and  adopted.  It  was  designed  to 
assure  to  the  colored  race  the  enjoj'ment  of  all  the  civil  rights  that  under 
the  law  are  enjoyed  by  white  persons,  and  to  give  to  that  race  the  pro- 
tection of  the  general  government,  in  that  enjoyment,  whenever  it 
should  be  denied  by  the  States.  It  not  only  gave  citizenship  and  the 
privileges  of  citizenship  to  persons  of  color,  but  it  denied  to  an}'  State 
the  power  to  withhold  from  them  the  equal  protection  of  the  laws, 
and  authorized  Congress  to  enforce  its  provisions  by  appropriate 
legislation.  .   .  . 

If  this  is  the  spirit  and  meaning  of  the  amendment,  whether  it  means 
more  or  not,  it  is  to  be  construed  liberalh',  to  carr}'  out  the  purposes  of 
its  framers.  It  ordains  that  no  State  shall  make  or  enforce  any  laws 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States  (evidently'  referring  to  the  newly  made  citizens,  who, 
being  citizens  of  tlie  United  States,  are  declared  to  be  also  citizens  of 
the  State  in  which  they  reside).  It  ordains  that  no  State  shall  deprive 
any  person  of  life,  libert}',  or  property,  without  due  process  of  law,  or 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the  laws. 
What  is  this  but  declaring  that  the  law  in  the  States  shall  be  the  same 
for  the  black  as  for  the  white  ;  that  all  persons,  whether  colored  or 
white,  shall  stand  equal  before  the  laws  of  the  States,  and,  in  regard  to 
the  colored  race,  for  whose  protection  the  amendment  was  primarily- 
designed,  that  no  discrimination  shall  be  made  against  them  b}'  law 
because  of  their  color?  The  words  of  the  amendment,  it  is  true,  are 
prohibitorj',  but  the}'  contain  a  necessary  implication  of  a  positive  im- 
munity, or  right,  most  valuable  to  the  colored  race,  —  the  right  to 
exemption  from  unfriendly  legislation  against  them  distinctively  as  col- 
ored,—  exemption  from  legal  discriminations,  implying  inferiorit}'  in 
civil  society,  lessening  the  security  of  tlieir  enjoyment  of  the  rights 
which  others  enjo}',  and  discriminations  which  are  steps  towards  reduc- 
ing them  to  the  condition  of  a  subject  race. 

That  the  West  Virginia  statute  respecting  juries  —  the  statute  that 
controlled  the  selection  of  the  grand  and  petit  jury  in  the  case  of  the 
plaintiff  in  error  —  is  such  a  discrimination  ought  not  to  be  doubted. 
Nor  would  it  be  if  the  persons  excluded  by  it  were  white  men.  If  in 
those  States  where  the  colored  people  constitute  a  majority  of  the  en- 
tire population  a  law  should  be  enacted  excluding  all  white  men  from 
jury  service,  thus  denying  to  them  the  privilege  of  participating  equall}' 
with  the  blacks  in  the  administration  of  justice,  we  apprehend  no  one 
would  be  heard  to  claim  that  it  would  not  lie  a  denial  to  white  men  of 
the  equal  protection  of  the  laws.  Nor  if  a  law  should  be  passed  exclud- 
voL.  I.  —  35 


546  STRAUDER   V.    WEST   VIRGINIA.  [CHAP.  IV. 

ing  all  naturalized  Celtic  Irishmen,  would  there  be  an}'  doubt  of  its 
inconsistency  with  the  spirit  of  the  amendment.  The  ver}'  fact  that 
colored  people  are  singled  out  and  expressly  denied  by  a  statute  all 
right  to  participate  in  the  administration  of  the  law,  as  jurors,  because 
of  their  color,  though  the}'  are  citizens,  and  may  be  in  other  respects 
fully  qualified,  is  practically  a  brand  upon  them,  aflixed  by  the  law,  an 
assertion  of  their  inferiorit}',  and  a  stimulant  to  that  race  prejudice 
which  is  an  impediment  to  securing  to  individuals  of  the  race  that  equal 
justice  which  the  law  aims  to  secure  to  all  others. 

The  right  to  a  trial  by  jury  is  guaranteed  to  ever}'  citizen  of  West 
Virginia  by  the  Constitution  of  that  State,  and  the  constitution  of  juries 
is  a  very  essential  part  of  the  protection  such  a  mode  of  trial  is  intended 
to  secure.  The  very  idea  of  a  jury  is  a  body  of  men  composed  of  the 
peers  or  equals  of  the  person  whose  rights  it  is  selected  or  summoned 
to  determine  ;  that  is,  of  his  neighbors,  fellows,  associates,  persons  hav- 
ing the  same  legal  status  in  society  as  that  which  he  holds.  Blackstone, 
in  his  Commentaries,  says,  "  The  right  of  trial  by  jury,  or  the  country, 
is  a  trial  by  the  peers  of  every  Englishman,  and  is  the  grand  bulwark 
of  his  liberties,  and  is  secured  to  him  by  the  Great  Charter."  It  is  also 
guarded  by  statutory  enactments  intended  to  make  impossible  what  Mr. 
Bentham  called  "  packing  juries."  It  is  well  known  that  prejudices 
often  exist  against  particular  classes  in  the  community,  which  sway  the 
judgment  of  jurors,  and  which,  therefore,  operate  in  some  cases  to  deny 
to  persons  of  those  classes  the  full  enjoyment  of  that  protection  which 
others  enjoy.  Prejudice  in  a  local  community  is  held  to  be  a  reason  for 
a  change  of  venue.  The  framers  of  the  constitutional  amendment  must 
have  known  full  well  the  existence  of  such  prejudice  and  its  likelihood 
to  continue  against  the  manumitted  slaves  and  their  race,  and  that 
knowledge  was  doubtless  a  motive  that  led  to  the  amendment.  By 
their  manumission  and  citizenship  the  colored  race  became  entitled  to  the 
equal  protection  of  the  laws  of  the  States  in  which  they  resided  ;  and 
the  apprehension  that  through  prejudice  they  might  be  denied  that  equal 
protection,  that  is,  that  there  miglit  be  discrimination  against  them,  was 
the  inducement  to  bestow  upon  the  national  government  the  power  to 
enforce  tlie  provision  that  no  State  shall  den}'  to  them  the  equal  protec- 
tion of  the  laws.  Without  the  apprehended  existence  of  prejudice  that 
portion  of  the  amendment  would  have  been  unnecessary,  and  it  might 
have  been  left  to  the  States  to  extend  equality  of  protection.  .  .  . 

We  do  not  say  that  within  the  limits  from  which  it  is  not  excluded  by 
the  amendment,  a  State  may  not  prescribe  the  qualifications  of  its  jurors, 
and  in  so  doing  make  discriminations.  It  may  confine  the  selection  to 
males,  to  freeholders,  to  citizens,  to  persons  within  certain  ages,  or  to 
persons  having  educational  qualifications.  We  do  not  believe  the 
Fourteenth  Amendment  was  ever  intended  to  prohibit  this.  Looking 
at  its  history,  it  is  clear  it  had  no  such  purpose.  Its  aim  was  against 
discrimination  because  of  race  or  color.  As  we  have  said  more  than 
once,  its  design  was  to  protect  an  emancipated  race,  and  to  strike  down 


CHAP.  IV.]  STKAUDER   V.   WEST   VIRGINIA.  547 

all  possible  legal  cliscriminaUons  against  those  who  belong  to  it.  To 
quote  further  from  16  \V'all.,  supra:  "  In  giving  construction  to  any  of 
these  articles  [amendments],  it  is  necessary  to  keep  the  main  purpose 
steadily  in  view."  "  It  is  so  clearly  a  provision  for  that  race  and  that 
emergency,  that  a  strong  case  would  be  necessary  for  its  application  to 
any  other."  We  are  not  now  called  upon  to  affirm  or  deny  that  it  had 
other  purposes. 

The  Fourteenth  Amendment  makes  no  attempt  to  enumerate  the 
rights  it  designed  to  protect.  It  speaks  in  general  terms,  and  those  are 
as  comprehensive  as  possible.  Its  language  is  prohibitory  ;  but  every 
prohibition  implies  the  existence  of  rights  and  immunities,  prominent 
among  which  is  an  immunitj'  from  ineqnalit}'  of  legal  protection,  either 
for  life,  liberty,  or  property.  Any  State  action  that  denies  this  immu- 
nity to  a  colored  man  is  in  conflict  with  the  Constitution. 

Concluding,  therefore,  that  the  statute  of  West  Virginia,  discriminat- 
ing in  the  selection  of  jurors,  as  it  does,  against  negroes  because  of 
their  color,  amounts  to  a  denial  of  the  equal  protection  of  the  laws  to  a 
colored  man  when  he  is  put  upon  trial  for  an  alleged  offence  against 
the  State,  it  remains  only  to  be  considered  whether  the  power  of  Con- 
gress to  enforce  the  provisions  of  the  Fourteenth  Amendment  by  appro- 
priate legislation  is  sufficient  to  justify  the  enactment  of  sect.  Gil  of  the 
Revised  Statutes. 

A  right  or  an  immunit}',  whether  created  b}'  the  Constitution  or  only 
guaranteed  by  it,  even  without  any  express  delegation  of  power,  may  be 
protected  by  Congress.  PTigg  v.  The  Comtnonwealth  of  Pennsyl- 
vania^ 16  Pet.  539.  So  in  United  States  v.  Reese,  92  U.  S.  214,  it 
was  said  b}'  the  Chief  Justice  of  this  court:  "Rights  and  immunities 
created  by  or  dependent  upon  the  Constitution  of  the  United  States  can 
be  protected  by  Congress.  The  form  and  manner  of  the  protection  may 
be  such  as  Congress  in  the  legitimate  exercise  of  its  legislative  discre- 
tion shall  provide.  These  ma}'  be  varied  to  meet  the  necessities  of  the 
particular  right  to  be  protected."  But  there  is  express  authorit\'  to 
protect  the  rights  and  immunities  referred  to  in  the  P"'ourteenth  Amend- 
ment, and  to  enforce  observance  of  them  b}-  appropriate  congressional 
legislation.  And  one  ver^'  efficient  and  appropriate  mode  of  extending 
such  protection  and  securing  to  a  party  the  enjoyment  of  the  right  or 
immunit}',  is  a  law  providing  for  the  removal  of  his  case  from  a  State 
court,  in  which  the  right  is  denied  by  the  State  law,  into  a  Federal 
court,  where  it  will  be  upheld.  This  is  an  ordinary  mode  of  protecting 
rights  and  immunities  conferred  by  the  Federal  Constitution  and  laws. 
Sect.  641  is  such  a  provision.   .   .   . 

We  have  heretofore  considered  and  affirmed  the  constitutional  power 
of  Congress  to  authorize  the  removal  from  State  courts  into  the  circuit 
courts  of  the  United  States,  before  trial,  of  criminal  prosecutions  for 
alleged  offences  against  the  laws  of  the  State,  when  the  defence  pre- 
sents a  Federal  question,  or  when  a  right  under  the  Federal  Constitution 
or  laws  is  involved.  Tennessee  v.  Dnris,  supra,  p.  257.  It  is  unneces- 
sar}^  now  to  repeat  what  we  there  said. 


548  EX   PARTE   VIRGINIA.  [CHAP.  IV. 

That  the  petition  of  the  plaintiff  in  error,  filed  bj  him  in  the  State 
court  before  the  trial  of  his  case,  made  a  case  for  removal  into  the  Fed- 
eral Circuit  Court,  under  sect.  641,  is  very  plain,  if,  by  the  constitu- 
tional amendment  and  sect.  1977  of  the  Revised  Statutes,  he  was 
entitled  to  immunity  from  discrimination  against  him  in  the  selection 
of  jurors,  because  of  their  color,  as  we  have  endeavored  to  show  that 
he  was.  It  set  forth  sufficient  facts  to  exhibit  a  denial  of  that  immun- 
ity, and  a  denial  by  the  statute  law  of  the  State. 

There  was  error,  therefore,  in  proceeding  to  the  tfial  of  the  indict- 
ment'against  him  after  his  petition  was  filed,  as  also  in  overruling  his 
challenge  to  the  array  of  the  jury,  and  in  refusing  to  quash  the  panel. 

The  judgment  of  the  Supreme  Court  of  West  Virginia  will  be  reversed, 
and  the  case  remitted  with  instructions  to  reverse  the  judgment  of  the 
Circuit  Court  of  Ohio  County  ;  and  it  is  So  ordered. 

[Field  and  Clifford,  JJ.,  dissented.] 


3.  A 


Ex   Parte   VIRGINIA. 
Supreme  Court  of  the  United  States.     1879. 

[100  U.  S.  339.] 

Petition  for  a  writ  of  hcd>€as  corjjus. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Mr.  James  G.  Field,  Attorney-General  of  Virginia,  and  Mr.  William 
J.  Itohertson,  for  the  petitioner. 

31r.  Attorney- General  I)eve7is  and  Mr.  Assistant  Attor^iey-  General 
livtx  iiX^^.  Smith.,  contra. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  petitioner,  J.  D.  Coles,  was  arrested,  and  he  is  now  held  in  cus- 
tody under  an  indictment  found  against  him  in  the  District  Court  of  the 
United  States  for  the  Western  District  of  Virginia.  The  indictment 
alleged  that  he,  being  a  judge  of  tlie  county  court  of  Pittsylvania  County 
ofjhat  State,  and  an  officer  charged  by  law  with  the  selection  of  jurors 
to  serve  in  the  circuit  and  county  coui'ts  of  said  county  in  the  year 
1878,  did  then  and  there  exclude  and  fail  to  select  as-  grand  and  i^etit 
jurors  certain  citizens  of  said  county  of  Pittsylvania,  of  African  race 
and  black  color,  said  citizens  possessing  all  otlier  qualifications  pre- 
scribcd  by  law,  and  being  by  him  excluded  from  the  jury  lists  made  out 
by  him  as  such  judge,  on  account  of  their  race,  color,  and  previous  con- 
dition  of  servitude,  and  for  no  other  reason,  against  the  peace  and  d ig- 
nity  of  the  United  States,  and  against  the  foi'm  of  the  statute  of  the 
United  States  in  such  case  made  and  provided. 

Being  thus  in  custody,  he  has  presented  to  us  his  petition  for  a  writ 
of  /laheas  corpus  and  a  writ  of  certiorari  to  bring  up  the  record  of  the 
District  Court,  in  order  that  he  may  be  discharged ;  and  he  avers  that 


CHAP.  IV.]  EX  PARTE   VIliGlNIA.  549 

the  District  Court  had  and  has  no  jurisdiction  of  the  matters  charged 
against  him  in  said  indictment ;  that  they  constitute  no  offence  punisli- 
able  in  said  District  Court ;  and  that  the  finding  of  said  indictment,  and 
his  consequent  arrest  and  imprisonment,  are  unwarranted  by  the  Con- 
stitution of  the  United  States,  or  b\'  any  law  made  in  pursuance  thereof^ 
and  ai'e  in  violation  of  his  rights  and  of  the  rights  of  the  State  of  Vir- 
ginia, whose  judicial  officer  he  is. 

A  similar  petition  has  been  presented  by  the  State  of  Virginia,  pra}'- 
ing  for  a  habeas  corpus  and  for  tlie  discharge  of  the  said  Coles.  Accom- 
panying both  these  petitions  are  exhibited  copies  of  the  indictment,  the 
bench-warrant,  and  the  return  of  the  marshal,  showing  the  arrest  of 
the  said  Coles  and  his  detention  in  custody. 

Both  these  petitions  have  been  considered  as  one  case,  and  the  first 
question  they  present  is,  whether  this  court  has  jurisdiction  to  award 
the  writ  asked  for  b}'  the  petitioners.  .  .  .  Our-  conclusion,  then,  is  that 
we  are  empowered  to  grant  the  writ  in  such  a  case  as  is  presented  in 
these  petitions.     We  come  now  to  the  merits  of  the  case. 

The  indictment  and  bench-warrant,  in  virtue  of  which  the  petitioner 
Coles  has  been  arrested  and  is  held  in  custody,  have  their  justification, 
—  if  any  they  have,  —  in  the  Act  of  Congress  of  March  1,  1875,  sect.  4. 
18  Stat.,  part  3,  33G.  That  section  enacts  that  "  no  citizen,  possessing 
all  other  qualifications  which  are  or  may  be  prescribed  by  law  .shall  be 
disqualified  for  service  as  grand  or  petit  juror  in  any  court  of  the  United 
States,  or  of  any  State,  on  account  of  race,  color,  or  previous  condition 
of  servitude  ;  and  any  officer  or  other  person  cliarged  with  an}'  duty  in 
the  selection  or  summoning  of  jurors  wlio  shall  exclude  or  fail  to  sum- 
mon any  citizen  for  the  cause  aforesaid  shall,  on  conviction  thereof,  be 
deemed  guilty  of  a  misdemeanor,  and  be  fined  not  more  than  $5,000 .' ' 
The  defendant  has  been  indicted  for  the  misdemeanor  described  in  this 
Act,  and  it  is  not  denied  that  he  is  now  properly  held  in  custody  to 
answer  the  indictment,  if  the  Act  of  Congress  was  warranted  by  the 
Constitution.  The  whole  merits  of  the  case  are  involved  in  the  ques- 
tion, whether  the  Act  was  thus  warranted.  .  .  . 

One  great  purpose  of  these  amendments  was  to  raise  the  colored  race 
from  that  condition  of  inferiority  and  servitude  in  which  most  of  them 
had  previously  stood,  into  perfect  equality  of  civil  rights  with  all  other 
persons  within  the  jurisdiction  of  the  States.  The}^  were  intended  to 
take  away  all  possibility  of  oppression  by  law  because  of  race  or  color. 
They  were  intended  to  be,  what  they  really  are,  limitations  of  the  power 
of  the  States  and  enlargements  of  the  power  of  Congress.  They  are  to 
some  extent  declaratory  of  rights,  and  though  in  form  prohibitions,  they 
imply  immunities,  such  as  may  be  protected  by  congressional  legisla- 
tion. "We  had  occasion  in  the  Slaughter- House  Cases,  16  Wall.  36,  to 
express  our  opinion  of  their  spirit  and  purpose,  and  to  some  extent  of 
their  meaning.  We  have  again  been  called  to  consider  them  in  Ten- 
nessee v.  Davis,  100  U.  S.  257,  and  Strauder  v.  West  Virginia,  Id. 
303.     In  this  latter  case  ...  we  held,  further,  that  this  protection 


550  EX   TARTE   VIRGINIA.  [CIIAP.  IV, 

and  this  guarantee,  as  the  fifth  section  of  the  amendment  expressly  or- 
dains, may  be  enforced  by  Congress  by  means  of  appropriate  legislation. 

All  of  the  amendments  derive  much  of  their  force  from  tliis  latter 
provision.  It  is  not  said  tlie  judicial  power  of  the  general  government 
shall  extend  to  enforcing  the  proliibitions  and  to  protecting  the  riglits 
and  immunities  guaranteed.  It  is  not  said  that  branch  of  the  govern- 
ment shall  be  authorized  to  declare  void  any  action  of  a  State  in  viola- 
tion of  the  prohibitions.  It  is  the  power  of  Congress  which  has  been 
enlarged.  Congress  is  authorized  to  enforce  the  prohibitions  by  ai)pro- 
priate  legislation.  Some  legislation  is  contemi)lated  to  make  the  amend- 
ments fully  effective.  Whatever  legislation  is  appropriate,  that  is, 
adapted  to  carry  out  the  objects  the  amendments  have  in  view,  what- 
ever tends  to  enforce  submission  to  the  proliibitions  the}*  contain,  and  to 
secure  to  all  persons  the  enjoyment  of  perfect  equality  of  civil  rights  and 
the  equal  protection  of  the  laws  against  State  denial  or  invasion,  if  not 
prohibited,  is  brought  within  the  domain  of  congressional  power.  .  .  . 

We  have  said  the  prohibitions  of  the  Fourteenth  Amendment  are 
addressed  to  the  States.  They  are,  "No  State  shall  make  or  enforce 
a  law  which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  .  .  .  nor  deny  to  an}-  person  within  its  jurisdiction  the 
equal  protection  of  the  laws."  They  have  reference  to  actions  of  the  po- 
litical body  denominated  a  State,  by  whatever  instruments  or  in  whatever 
modes  that  action  may  be  taken.  A  State  acts  b}'  its  legislative,  its 
executive,  or  its  judicial  authorities.  It  can  act  in  no  other  wa}'.  The 
constitutional  provision,  therefore,  must  mean  that  no  agenc\'  of  the 
State,  or  of  the  officers  or  agents  b}-  whom  its  powers  are  exerted,  shall 
deny  to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws.  Whoever,  by  virtue  of  public  position  under  a  State  government, 
deprives  another  of  property,  life,  or  liberty,  without  due  process  of 
law,  or  denies  or  takes  away  the  equal  protection  of  the  laws,  violates 
the  constitutional  inhibition  ;  and  as  he  acts  in  the  name  and  for  the 
State,  and  is  clothed  with  the  State's  power,  his  act  is  that  of  the  State. 
This  must  be  so,  or  the  constitutional  prohibition  has  no  meaning. 
Then  the  State  has  clothed  one  of  its  agents  with  power  to  annul  or  to 
evade  it.   .   .  . 

We  do  not  perceive  how  holding  an  office  under  a  State,  and  claiming 
to  act  for  the  State,  can  relieve  the  holder  from  obligation  to  obey  the 
Constitution  of  the  United  States,  or  take  away  the  power  of  Congress 
to  punish  his  disobedience. 

It  was  insisted  during  the  argument  on  behalf  of  tlie  petitioner  that 
Congress  cannot  pnnish  a  State  judge  for  his  official  acts;  and  it  was 
assumed  that  Judge  Cole,  in  selecting  the  jury  as  he  did,  was  perform- 
ing a  judicial  act.  This  assumption  cannot  be  admitted.  Whether  the 
act  done  by  him  was  judicial  or  not  is  to  be  determined  b}'  its  character, 
and  not  by  the  character  of  the  agent.  Whether  he  was  a  countv  judge 
or  not  is  of  do  importance.  The  duty  of  selecting  jurors  might  as  well 
have  been  committed  to  a  private  person  as  to  one  holding  the  office  of 


CHAP.  IV.]  EX  PARTE  YARBROUGH.  551 

a  judge.  It  often  is  given  to  county  commissioners,  or  supervisors,  or 
assessors.  In  former  times,  the  selection  was  made  by  tiie  slieritf.  In 
such  cases,  it  surely  is  not  a  judicial  act,  in  any  such  sense  as  is  con- 
tended for  here.  It  is  merely  a  ministerial  act,  as  much  so  as  the  act 
of  a  sheriff  holding  an  execution,  in  determining  upon  what  piece  of 
property  he  will  make  a  lev}',  or  the  act  of  a  roaduiaster  in  selecting 
laborers  to  work  upon  the  roads.  That  the  jurors  are  selected  for  a 
court  makes  no  difference.  So  are  court-criers,  tipstaves,  sheriffs,  &o. 
Is  their  election  or  their  appointment  a  judicial  act? 

But  if  the  selection  of  jurors  could  be  considered  in  an}-  case  a  judicial 
act,  can  the  act  charged  against  the  petitioner  be  considered  such  Avhen 
he  acted  outside  of  his  autliority  and  in  direct  violation  of  the  spirit  of 
the  State  statute?  That  statute  gave  him  no  authorit}',  when  selecting 
jurors,  from  whom  a  panel  might  be  drawn  for  a  circuit  court,  to  exclude 
all  colored  men  merely  because  they  were  colored.  Such  an  exclusion 
was  not  left  within  the  limits  of  his  discretion.  It  is  idle,  therefore,  to 
say  that  the  Act  of  Congress  is  unconstitutional  because  it  inflicts  penal- 
ties upon  State  judges  for  their  judicial  action.      It  does  no  such  thing. 

Upon  the  whole,  as  we  are  of  opinion  that  the  Act  of  Congress  upon 
which  the  indictment  against  the  petitioner  was  founded  is  constitu- 
tional, and  that  he  is  correctly  held  to  answer  it,  and  as,  therefore,  no 
object  would  be  secured  by  issuing  a  writ  of  habeas  corpus,  tlie  peti- 
tions are  Denied. 

[Field,  J.,  for  himself  and  Clifford,  J.,  gave  a  dissenting  opinion.] 

In  ^x parte  Yarbroua/u  110  U.  S.  651  (1883),  in  denying  a  petition 
for  a  writ  of  habeas  corpus  for  the  release  of  several  persons,  sen- 
tenced and  imprisoned  for  conspiracy  to  intimidate  persons  of  African 
descent  from  voting  at  an  election  for  a  member  of  Congress,  the  court 
(Miller,  J.)  said  :  "  It  is  said  that  the  parties  assaulted  in  these  cases 
are  not  officers  of  the  United  States,  and  their  protection  in  exercising 
the  right  to  vote  by  Congress  does  not  stand  on  the  same  ground. 

"  But  the  distinction  is  not  well  taken.  The  power  in  either  case 
arises  out  of  the  circumstance  that  the  function  in  which  the  party  is 
engaged  or  the  right  which  he  is  about  to  exercise  is  dependent  on  the 
laws  of  the  United  States. 

"  In  both  cases  it  is  the  duty  of  that  government  to  see  tliat  he  may 
exercise  this  right  freel}',  and  to  protect  him  from  violence  while  so 
doing,  or  on  account  of  so  doing.  This  duty  does  not  arise  solely  from 
the  interest  of  the  party  concerned,  but  from  the  necessity  of  the  q-qv- 
e muient  itself,  that  its  service  shall  be  free  from  the  adverse  influence 
of  force  and  fraud  practised  on  its  agents,  and  that  the  votes  by  which 
its  members  of  Congress  and  its  President  are  elected  shall  be  the  free 
votes  of  the  electors,  and  the  officers  thus  chosen  the  free. and  uncor- 
ruijtcd  choice  of  those  who  have  the  right  to  take  part  in  that  choice . 

"  This  proposition  answers  also  another  objection  to  tlie  constitution- 
ality of  the  laws  under  consideration,  namel}',  that  the  right  to  vote  foi 


oo: 


EX   rAUTE   YAUBliOUGH.  [CHAP.  IV. 


a  member  of  Congress  is  not  dependent  upon  the  Constitution  or 
laws  of  the  United  States,  but  is  governed  by  the  law  of  each  State 
respectively. 

''If  this  were  conceded,  the  importance  to  the  general  government 
of  having  the  actual  election  —  the  voting  for  those  members  —  free 
from  force  and  fraud  is  not  diminished  by  the  circumstance  that  tlie 
qualification  of  the  voter  is  determined  by  the  law  of  the  State  where 
he  votes.  It  equally  affects  the  government,  it  is  as  indispensable  to 
tiie  proper  discharge  of  the  great  function  of  legislating  for  that  gov- 
ei'ument,  that  those  who  are  to  control  this  legislation  shall  not  owe 
their  election  to  bribery  or  violence,  whether  the  class  of  persons  who 
shall  vote  is  determined  by  the  law  of  the  State,  or  by  law  of  the 
United  States,  or  by  their  united  result. 

"  But  it  is  not  correct  to  say  that  the  right  to  vote  for  a  member  of 
Congress  does  not  depend  on  the  Constitution  of  the  United  States. 

"  The  office,  if  it  be  properly  called  an  office,  is  created  b}'  that  Con- 
stitution, and  by  that  alone.  It  also  declares  how  it  shall  be  filled  ; 
namely,  by  election. 

"Its  language  is:  'The  House  of  Representatives  shall  be  com- 
posed of  members  chosen  every  second  year  by  the  people  of  the  sev- 
eral States,  and  the  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  State  legis- 
lature."    Article  1,  section  2. 

' '  The  States  in  ])rescribing  the  qualifications  of  voters  for  the  most 
numerous  branch  of  their  own  legislatures,  do  not  do  this  with  referen ce 
to  the  election  for  members  of  Congress.  Nor  can  they  prescribe  the 
qualification  for  voters  for  those  eo  nomine.  Tliey  deline  wlio  are  to 
vote  for  the  popular  branch  of  their  own  legislature,  and  the  Constitu- 
tion of  the  United  States  says  the  same  persons  shall  vote  for  members 
of  Congress  in. that  State.  It  adopts  the  qualification  thus  furnished  as 
the  qualificatioii,  of  its  own  electors  for  members  of  Congress. 

"  It  is  not  true,  tlierefore,  that  electors  for  members  of  Congress  owe 
their  right  to  vote  to  the  State  law  in  any  sense  which  makes  the  exer- 
cise of  the  right  to  depend  exclusively  on  the  law  of  the  State. 

"  Counsel  for  petitioners,  seizing  upon  the  expression  found  in  the 
opinion  of  the  court  in  the  case  o^  Minor  v.  liapijcvsttt,  21  "Wall.  162, 
that  '  the  Constitution  of  the  United  States  does  not  confer  the  right  of 
suffrage  upon  any  one,'  without  reference  to  the  connection  in  which  it 
is  used,  insists  tliat  the  voters  in  this  case  do  not  owe  their  right  to  vote 
in  any  sense  to  that  instrument. 

"  But  the  court  was  coml)at.ing  the  argument  that  this  right  was  con- 
ferred on  all  citizens,  and  therefore  upon  women  as  well  as  men. 

"  In  opposition  to  that  idea,  it  was  said  the  Constitution  adopts  as 
the  qualification  for  voters  of  members  of  Congress  that  which  prevails 
in  the  State  where  the  voting  is  to  be  done  ;  therefore,  said  the  opin- 
ion, the  right  is  not  definitely  conferred  on  any  person  or  class  of  per- 
sons, by  the  Constitution  alone,  because  you  have  to  look  to  the  law  of 


CHAl'.  IV.]  EX   rAPvTE   YAKBROUGII.  553 

the  State  for  the  description  of  the  class.  But  the  court  did  not  intend 
to  say  that  when  the  class  or  the  person  is  thus  ascertained,  his  right  to 
vote  for  a  member  of  Congress  was  not  fundamentally  based  upon  the 
Constitution,  which  created  the  office  of  member  of  Congress,  and  de- 
clared it  sliould  be  elective,  and  pointed  to  the  means  of  ascertaining 
who  should  be  electors. 

"  The  Fifteenth  Amendment  of  the  Constitution,  b}'  its  limitation  on 
the  power  of  the  States  iu  the  exercise  of  their  right  to  prescribe  the 
qualifications  of  voters  in  their  own  elections,  and  by  its  limitation  of 
the  power  of  the  United  States  over  that  subject,  clearly  shows  that  the 
right  of  suffrage  was  considered  to  be  of  supreme  importance  to  the 
national  government,  and  was  not  intended  to  be  left  within  the  exclu- 
sive control  of  the  States.     It  is  in  the  following  language  :  — 

''  '  Sec.  1.  The  riglit  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged  by  the  United  States,  or  by  an}-  State,  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

" '  Sec.  2.  The  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation.' 

"  While  it  is  quite  true,  as  was  said  by  this  court  in  United  States  v. 
Eeese,  92  U.  S.  214,  that  this  article  gives  no  affirmative  right  to  the 
colored  man  to  vote,  and  is  designed  primaril}'  to  prevent  discrimina- 
tion against  him  whenever  the  riglit  to  vote  may  be  granted  to  others, 
it  is  easy  to  see  that  under  some  circumstances  it  maj'  operate  as  the 
immediate  source  of  a  right  to  vote.  In  all  cases  where  the  former 
slaveholding  States  had  not  removed  from  their  constitutions  the  words 
'  white  man'  as  a  qualificatiou  for  voting,  this  provision  did,  in  effect, 
confer  on  him  the  right  to  vote,  because,  being  paramount  to  the  State 
law,  and  a  part  of  the  State  law,  it  annulled  the  discriminating  word 
white,  and  thus  left  him  in  the  enjoyment  of  the  same  right  as  white 
persons.  And  such  would  be  the  effect  of  any  future  constitutional 
provision  of  a  State  which  should  give  the  right  of  voting  exclusively 
to  white  people,  whether  they  be  men  or  women.  JSTecd  v.  Delaioare, 
103  U.  S.  370. 

"  In  such  cases  this  Fifteenth  Article  of  Amendment  does,  propria 
vigore,  substantially  confer  on  the  negro  the  right  to  vote,  and  Congress 
has  the  power  to  protect  and  enforce  that  right. 

"  In  the  case  of  United  States  v.  Reese,  so  much  relied  on  b}'  coun- 
sel, this  court  said  in  regard  to  the  Fifteenth  Amendment,  that  '  it  has 
invested  the  citizens  of  the  United  States  with  a  new  constitutional 
right  which  is  within  the  protecting  power  of  Congress.  That  right  is 
an  exemption  from  discrimination  in  the  exercise  of  the  elective  fran- 
chise on  account  of  race,  color,  or  previous  condition  of  servitude.' 
This  new  constitutional  right  was  mainl}-  designed  for  citizens  of  African 
descent.  The  principle,  however,  that  the  protection  of  the  exercise  of 
this  right  is  yyithin  the  power  of  Congress,  is  as  necessary  to  the  right 
of  other  citizens  to  vote  as  to  the  colored  citizen,  and  to  the  right  to 
vote  in  general  as  to  the  right  to  be  protected  against  discrimination. 


554  CIVIL   RIGHTS   CASES.  [CHAP.  IV. 

"  The  exercise  of  the  right  in  both  instances  is  guaranteed  by  the 
Constitution,  and  should  be  licpt  free  and  pure  by  congressional  enact- 
ments whenever  that  is  necessar}'. 

"The  reference  to  cases  in  this  court  in  wliich  the  power  of  Congress 
under  the  first  section  of  the  Fourteenth  Amendment  has  been  held  to 
relate  alone  to  acts  done  under  State  authority,  can  afford  petitioners 
no  aid  in  the  present  case.  For,  while  it  may  be  true  that  acts  which 
are  mere  invasions  of  private  rights,  which  acts  have  no  sanction  in  the 
statutes  of  a  State,  or  which  are  not  committed  b^-  an}-  one  exercising 
its  authorit}-,  are  not  within  the  scope  of  that  amendment,  it  is  quite  a 
different  matter  when  Congress  undertakes  to  protect  the  citizen  in  the 
exercise  of  rights  conferred  by  the  Constitution  of  the  United  States 
essential  to  the  healthy  organization  of  the  government  itself." 


CIVIL  RIGHTS   CASES. 

Supreme  Court  of  the  United  States.     1883. 

[109  U.  S.  3.] 

These  cases  were  all  founded  on  the  first  and  second  sections  of  the 
Act  of  Congress,  known  as  the  Civil  Rights  Act,  passed  March  1st, 
1875,  entitled  "  An  Act  to  protect  all  Citizens  in  their  Civil  and  Legal 
Rights."  18  Stat.  335.  Two  of  the  cases,  those  against  Stanley  and 
Nichols,  were  indictments  for  denying  to  persons  of  color  the  accommo- 
dations and  privileges  of  an  inn  or  hotel ;  two  of  them,  those  against 
Ryan  and  Singleton,  were,  one  an  information,  the  other  an  indictment, 
for  denying  to  individuals  the  privileges  and  accommodations  of  a 
theatre,  the  information  against  Ryan  being  for  refusing  a  colored 
person  a  seat  in  the  dress  circle  of  Maguire's  theatre  in  San  Fran- 
cisco  ;  and  the  indictment  against  Singleton  was  for  denying  to  another 
person,  whose  color  was  not  stated,  the  full  enpyment  of  the  accomm o- 
dations  of  the  theatre  known  as  the  Grand  Opera  House  in  NewJilork, 
' '  said  denial  not  being  made  for  any  reasons  by  law  applicable  to  citi- 
zens  of  every  race  and  color,  and  regardless  of  any  previous  condition 
of  servitude."  The  case  of  Robinson  and  wife  against  the  Memphis  & 
Charleston  R.  R.  Company  was  an  action  brought  in  the  Circuit  Court 
of  the  United  States  for  the  Western  District  of  Tennessee,  to  recover 
the  penalty  of  five  hundred  dollars  given  by  the  second  section  of  the 
Act ;  and  the  gravamen  was  the  refusal  b}^  the  conductor  of  thejxiijroad 
company  to  allow  the  wife  to  ride  in  the  ladies'  car,  for  the  reason,  as 
stated  in  one  of  the  counts,  that  she  was  a  person  of  African  descent. 
The  jury  rendered  a  verdict  for  the  defendants  in  this  case  upon  the 
merits,  under  a  charge  of  the  coui't  to  which  a  bill  of  exceptions  was 
taken  by  the  plaintiffs.  The  case  was  tried  on  tlie  assumption  hy  both 
parties  of  the  validity  of  the  Act  of  Congress  ;  and  the  principal  point 


CHAP.  IV.]  CIVIL   EIGHTS   CASES.  555 

made  by  the  exceptions  was,  that  the  judge  allowed  evidence  to  go  to 
the  jury  tending  to  show  that  the  conductor  had  reason  to  suspect  that 
the  plaintiff,  the  wife,  was  an  improper  person,  because  she  was  in  com- 
pany with  a  young  man  whom  he  supposed  to  be  a  white  man,  and  on 
that  account  infei'red  that  there  was  some  improper  connection  between 
them  ;  and  the  judge  charged  the  jur}',  in  substance,  that  if  this  was 
the  conductor's  bona  fide  reason  for  excluding  the  woman  from  the  car, 
the}'  might  take  it  into  consideration  on  the  question  of  the  liabilitj'  of 
the  compan}-.  The  case  was  brought  here  by  writ  of  error  at  the  suit 
of  the  plaintiffs.  The  cases  of  Stanley,  Nichols,  and  Singleton,  came 
up  on  certificates  of  division  of  opinion  between  the  judges  below  as  to 
the  constitutionality  of  the  first  and  second  sections  of  the  Act  referred 
to ;  and  the  case  of  Ryan,  on  a  writ  of  error  to  the  judgment  of  the 
Circuit  Court  for  the  District  of  California  sustaining  a  demurrer  to 
the  information. 

The  Stanley,  Ryan,  Nichols,  and  Singleton  cases  were  submitted 
together,  by  the  Solicitor-General  at  the  last  term  of  court,  on  the  7th 
day  of  November,  1882.  There  were  no  appearances  and  no  briefs 
filed  for  the  defendants. 

The  Robinson  case  was  submitted  on  the  briefs  at  the  last  term,  on 
the  29th  day  of  March,  1883. 

Mr.  Solicitor-  General  Phillips,  for  the  United  States. 

Mr.  William  31.  Randolph.,  for  Robinson  and  wife,  plaintiffs  in 
error. 

Mr.  William  Y.  C.  Humes  and  Mr.  David  Posten  for  the  Memphis 
and  Charleston  Railroad  Co.,  defendants  in  error. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court.  After 
stating  the  facts  in  the  above  language  he  continued  : 

It  is  obvious  that  the  pi-imary  and  important  question  in  all  the  cases 
is  the  constitutionality  of  the  law :  for  if  the  law  is  unconstitutional 
none  of  the  prosecutions  can  stand. 

The  sections  of  the  law  referred  to  provide  as  follows :  [These  sec- 
tions are  given  in  a  note  below.]  ^ 

^  "Sec.  1.  That  all  persons  withiu  the  jurisdiction  of  the  United  States  shall  be 
entitled  to  the  full  and  equal  enjojnneut  of  the  accommodations,  advantages,  facilities, 
and  privileges  of  inns,  public  conveyances  on  land  or  water,  theatres,  and  other  places 
of  public  amusement;  subject  only  to  the  conditions  and  limitations  established  by 
law,  and  applicable  alike  to  citizens  of  every  race  and  color,  regardless  of  any  previous 
condition  of  servitude. 

"  Sec.  2.  That  any  person  who  shall  violate  the  foregoing  section  by  denying  to  any 
citizen,  except  for  reasons  by  law  applicable  to  citizens  of  every  race  and  color,  and 
regardless  of  any  previous  condition  of  servitude,  the  full  enjoyment  of  an}'  of  the 
accommodations,  advantages,  facilities,  or  privileges  in  said  section  enumerated,  or  by 
aiding  or  inciting  such  denial,  shall  for  every  such  offence  forfeit  and  pay  the  sum  of 
five  hundred  dollars  to  the  person  aggrieved  thereby,  to  be  recovered  in  an  action  of 
debt,  with  full  costs  ;  and  shall  also,  for  every  such  offence,  be  deemed  guilty  of  a  mis- 
demeanor, and,  upon  conviction  thereof,  shall  be  fined  not  less  than  five  hundred  nor 
more  than  one  thousand  dollars,  or  shall  be  imprisoned  not  less  than  thirty  days  nor 
more  than  one  year  :  Provided,  That  all  persons  may  elect  to  sue  for  the  penalty  afore- 


556  CIVIL   RIGHTS   CASES.  [ciIAP.  IV. 

Are  those  sections  constitutional?  The  first  section,  whicli  is  the 
principal  one,  cannot  be  fairly  understood  witliout  attending  to  the  last 
clause,  which  qualifies  the  preceding  part. 

The  essence  of  the  law  is,  not  to  declare  broadl}'  that  all  persons 
shall  be  entitled  to  the  full  and  equal  enjoyment  of  the  accommodations, 
advantages,  facilities,  and  privileges  of  inns,  public  conveyances,  and 
tlieatres  ;  but  that  such  enjoyment  shall  not  be  subject  to  any  con- 
ditions applicable  only  to  citizens  of  a  particular  race  or  color,  or  wlio 
had  been  in  a  previous  condition  of  servitude.  In  other  words,  it  is 
the  purpose  of  the  law  to  declare  that,  in  the  enjoyment  of  the  accom- 
modations and  privileges  of  inns,  public  conveyances,  theatres,  and 
other  places  of  public  amusement,  no  distinction  shall  be  made  between 
citizens  of  ditferent  race  or  color,  or  between  those  who  have,  and  those 
who  have  not,  been  slaves.  Its  effect  is  to  declare,  that  in  all  inns, 
public  conveyances,  and  places  of  amusement,  colored  citizens,  wliether 
formerly  slaves  or  not,  and  citizens  of  other  races,  shall  have  tlie  same 
accommodations  and  privileges  in  all  inns,  public  conveyances,  and 
places  of  aamsement  as  are  enjo3'ed  by  white  citizens  ;  and  cice  versa. 
The  second  section  makes  it  a  penal  oflTence  in  an}'  person  to  denj-  to 
an}'  citizen  of  an}'  race  or  color,  regardless  of  previous  servitude,  any 
of  the  accommodations  or  privileges  mentioned  in  the  first  section. 

Has  Congress  constitutional  power  to  make  such  a  law  ?  Of  course, 
no  one  will  contend  that  the  power  to  pass  it  was  contained  in  the  Con- 
stitution before  the  adoption  of  the  last  three  amendments.  The  power 
is  sought,  first,  in  the  Fourteenth  Amendment,  and  the  views  and  argu- 
ments of  distinguished  Senators,  advanced  whilst  the  law  was  under 
consideration,  claiming  authority  to  pass  it  by  virtue  of  that  amend- 
ment, are  the  principal  arguments  adduced  in  favor  of  the  power.  We 
have  carefully  considered  those  arguments,  as  was  due  to  the  eminent 
ability  of  those  who  put  them  forward,  and  have  felt,  in  all  its  force, 
the  weight  of  authority  which  always  invests  a  law  that  Congress  deems 
itself  competent  to  pass.  But  the  responsibility  of  an  independent 
judgment  is  now  thrown  upon  this  court;  and  we  are  bound  to  exercise 
it  according  to  the  best  lights  we  have. 

The  first  section  of  the  Fourteenth  Amendment  (which  is  tlie  one 
relied  on),  after  declaring  who  shall  be  citizens  of  the  United  States, 
and  of  the  several  States,  is  prohibitory  in  its  character,  and  prohibitory 
upon  the  States.     It  declares  that : 

"No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property  without  due  pro- 
said,  or  to  proceed  under  their  rights  at  common  law  and  by  State  statutes ;  and  having 
so  elected  to  proceed  in  the  one  mode  or  the  other,  their  right  to  proceed  in  the  other 
jurisdiction  shall  be  bari'ed.  But  this  provision  shall  not  apply  to  ci'iminal  proceed- 
ings, either  under  this  Act  or  the  criminal  law  of  any  State :  And  provided  further. 
That  a  judgment  for  the  penalty  in  favor  of  the  party  aggrieved,  or  a  judgment  upon 
an  indictment,  shall  be  a  bar  to  either  prosecution  respectively." 


CHAP.  IV.]  CIVIL   rJGHTS   CASES.  557 

cess  of  law ;  nor  deny  to  an}'  person  within  its  jurisdiction  the  equal 
protection  of  the  laws." 

It  is  State  action  of  a  particular  character  that  is  prohibited.  Indi- 
vidual invasion  of  individual  rights  is  not  the  subject-matter  of  the 
amendment.  It  has  a  deeper  and  broader  scope.  It  nulhfies  and 
makes  void  all  State  legislation,  and  State  action  of  every  kind,  which 
impairs  tlie  privileges  and  immunities  of  citizens  of  the  United  States, 
or  which  injures  them  in  life,  liberty  or  propert}'  without  due  process  of 
law,  or  which  denies  to  any  of  them  the  equal  protection  of  the  laws. 
It  not  only  does  this,  but,  in  order  that  the  national  will,  thus  declared, 
ma}'  not  l)e  a  mere  hrutum  fultnen^  the  last  section  of  tlie  amendment  i 
invests  Congress  with  power  to  enforce  it  by  appropriate  legislation. 
To  enforce  what?  To  enforce  the  prohibition.  To  adopt  appropriate 
legislation  for  correcting  the  effects  of  such  prohibited  State  laws  and' 
State  Acts,  and  thus  to  render  them  effectually  null,  void,  and  innocu- 
ous. This  is  the  legislative  power  conferred  upon  Congress,  and  this 
is  the  whole  of  it.  It  does  not  invest  Congress  with  power  to  legislate 
upon  subjects  which  are  within  the  domain  of  State  legislation  ;  but  to 
provide  modes  of  relief  against  State  legislation,  or  State  action,  of 
the  kind  referred  to.  It  does  not  authorize  Congress  to  create  a  code 
of  municipal  law  for  the  regulation  of  private  rights  ;  but  to  provide 
modes  of  redress  against  the  operation  of  State  laws,  and  the  action 
of  State  officers  executive  or  judicial,  when  these  are  subversive  of  the 
fundamental  rights  specified  in  the  amendment.  Positive  rights  and 
privileges  are  undoubtedl}^  secured  by  the  Fourteenth  Amendment ;  but 
they  are  secured  by  wa}'  of  proliibition  against  State  laws  and  State 
proceedings  affecting  those  rights  and  privileges,  and  b}'  power  given 
to  Congress  to  legislate  for  the  purpose  of  carrying  such  prohibition 
into  effect :  and  such  legislation  must  necessaril}'  be  predicated  upon 
such  supposed  State  laws  or  State  proceedings,  and  be  directed  to  the 
correction  of  their  operation  and  effect.  A  quite  full  discussion  of  this 
aspect  of  the  amendment  may  be  found  in  United  States  v.  CndJcshcmk, 
92  U.  S.  542  ;  Virginia  v.  Eives,  100  U.  S.  313  ;  and  Ex  parte  Vir- 
ginia, 100  U.  S.  339. 

An  apt  illustration  of  this  distinction  may  be  found  in  some  of  the 
provisions  of  the  original  Constitution.  Take  the  subject  of  contracts, 
for  example.  The  Constitution  prohibited  the  States  from  passing  any 
law  impairing  the  obligation  of  contracts.  This  did  not  give  to  Con- 
gress power  to  provide  laws  for  the  general  enforcement  of  contracts  ; 
nor  power  to  invest  the  courts  of  the  United  States  with  jurisdiction 
over  contracts,  so  as  to  enable  parties  to  sue  upon  them  in  thosd  courts. 
It  did,  however,  give  the  power  to  provide  remedies  by  which  tlie  im- 
pairment of  contracts  b}'  State  legislation  might  be  counteracted  and 
corrected  :  and  this  power  was  exercised.  The  remed}'  which  Congress 
actually  provided  was  that  contained  in  the  25th  section  of  the  Judiciary 
Act  of  1789,  1  Stat.  85,  giving  to  the  Supreme  Court  of  the  United 
States  jurisdiction  by  writ  of  error  to  review  the  final  decisions  of  State 


558  CIVIL   ItlGIITS    CASES.  [ciIAP.  IV. 

coints  whenever  they  shouki  sustain  the  validity  of  a  State  statute  or 
autliority  alleged  to  be  repugnant  to  the  Constitution  or  laws  of  the 
United  States.  By  this  means,  if  a  State  law  was  passed  impairing  the 
obligation  of  a  contract,  and  the  State  tribunals  sustained  the  validity 
of  the  law,  the  mischief  could  be  corrected  in  this  court.  The  legisla- 
tion of  Congress,  and  the  proceedings  provided  for  under  it,  were 
corrective  in  their  character.  No  attcmi)t  was  made  to  draw  into  the 
United  States  courts  the  litigation  of  contracts  generally  ;  and  no  such 
attempt  would  iiave  been  sustained.  "We  do  not  say  that  the  remedy 
pro\ided  was  the  only  one  that  n:ight  have  been  provided  in  that  case. 
Probably  Congress  had  power  to  pass  a  law  giving  to  the  courts  of  the 
United  States  direct  jurisdiction  over  contracts  alleged  to  be  impaired 
by  a  State  law  ;  and  under  the  broad  provisions  of  the  Act  of  March 
3d,  1875,  ch.  137,  18  Stat.  470,  giving  to  the  circuit  courts  jurisdiction 
of  all  cases  arising  under  the  Constitution  and  laws  of  the  United 
States,  it  is  possible  that  such  jurisdiction  now  exists.  But  under 
that,  or  any  other  law,  it  must  appear  as  well  by  allegation,  as  proof 
at  the  trial,  that  the  Constitution  had  been  violated  by  the  action 
of  the  State  legislature.  Some  obnoxious  State  law  passed,  or  that 
might  be  passed,  is  necessary  to  be  assumed  in  order  to  la^-  the  founda- 
tion of  anj'  Federal  remed}-  in  the  case  ;  and  for  the  verj-  sufficient 
reason,  that  the  constitutional  prohibition  is  against  State  laws  impairing 
the  obligation  of  contracts. 

And  so  in  the  present  case,  until  some  State  law  has  been  passed,  or 
some  State  action  through  its  officers  or  agents  has  been  taken,  adverse 
to  the  rights  of  citizens  sought  to  be  protected  by  the  Fourteenth 
Amendment,  no  legislation  of  the  United  States  under  said  amendment, 
nor  any  proceeding  under  such  legislation,  can  be  called  into  activity  :  for 
the  prohibitions  of  the  amendment  are  against  State  laws  and  acts  done 
under  State  authority.  Of  course,  legislation  may,  and  should  be,  pro- 
vided in  advance  to  meet  the  exigency  when  it  arises  ;  but  it  should  be 
adapted  to  the  mischief  and  wrong  which  the  amendment  was  intended 
to  ])rovide  against ;  and  that  is.  State  laws,  or  State  action  of  some 
kind,  adverse  to  the  rights  of  the  citizen  secured  by  the  amendment. 
Such  legislation  cannot  properly  cover  the  whole  domain  of  rights 
appertaining  to  life,  lilierty  and  property,  defining  them  and  providing 
for  their  vindication.  That  would  be  to  establish  a  code  of  municipal 
law  regulative  of  all  private  rights  between  man  and  man  in  society. 
It  would  be  to  make  Congress  take  the  place  of  the  State  legislatures 
and  to  supersede  them.  It  is  absurd  to  aflfirm  that,  because  the  rights 
of  life,  liberty  and  property  (which  include  all  civil  rights  that  men 
have),  are  by  the  amendment  sought  to  be  protected  against  invasion 
on  the  part  of  the  State  without  due  process  of  law,  Congress  may  there- 
fore provide  due  process  of  law  for  tlieir  vindication  in  every  case  ;  and 
that,  because  the  denial  by  a  State  to  any  persons,  of  the  equal  pro- 
tection of  the  laws,  is  prohibited  by  the  amendment,  therefore  Congress 
may  establish  laws  for  their  equal  protection.     In  fine,  the  legislation 


1 


CHAP.  IV.]  CIVIL   EIGHTS    CASES.  559 

which  Congress  is  authorized  to  adopt  in  this  behalf  is  not  general 
legisUxtion  upon  the  rights  of  the  citizen,  but  corrective  legishition,  tluit 
is,  such  as  ma}'  be  necessary  and  proper  for  counteracting  sucli  h\ws  as 
the  States  may  adopt  or  enforce,  and  which,  by  tlie  amendment,  the}' 
are  prohibited  from  maliing  or  enforcing,  or  such  acts  and  proceedings 
as  the  States  may  commit  or  take,  and  which,  by  the  araen(hiient,  they 
are  prohibited  from  committing  or  talking.  It  is  not  necessary  for  us  to 
state,  if  we  could,  what  legislation  would  be  proper  for  Congress  to 
adopt.  It  is  suflicient  for  us  to  examine  whether  the  law  in  question 
is  of  that  character. 

An  inspection  of  the  law  shows  that  it  makes  no  reference  whatever 
to  an}-  supposed  or  apprehended  violation  of  the  Fourteenth  Amend- 
ment on  the  part  of  the  States.  It  is  not  predicated  on  any  such  view. 
It  proceeds  ex  directo  to  declare  that  certain  acts  committed  by  indi- 
viduals shall  be  deemed  offences,  and  shall  be  prosecuted  and  punished 
by  proceedings  in  the  courts  of  the  United  States.  It  does  not  profess 
to  be  corrective  of  any  constitutional  wrong  committed  by  the  States ; 
it  does  not  make  its  operation  to  depend  upon  any  such  wrong  com- 
mitted. It  applies  equally  to  cases  arising  in  States  which  have  the 
justest  laws  respecting  the  personal  rights  of  citizens,  and  whose 
authorities  are  ever  ready  to  enforce  such  laws,  as  to  those  which 
arise  in  States  that  may  have  violated  the  prohibition  of  the  amend- 
ment. In  other  words,  it  steps  into  the  domain  of  local  jurisprudence, 
and  lays  down  rules  for  the  conduct  of  individuals  in  society  towards 
each  other,  and  imposes  sanctions  for  the  enforcement  of  those  rules, 
without  referring  in  any  manner  to  any  supposed  action  of  the  State  or 
its  authorities. 

If  this  legislation  is  appropriate  for  enforcing  the  prohibitions  of  the 
amendment,  it  is  difficult  to  see  where  it  is  to  stop.  Why  may  not 
Congress  with  equal  show  of  authority  enact  a  code  of  laws  for  the 
enforcement  and  vindication  of  all  rights  of  life,  liberty,  and  property? 
If  it  is  supposable  that  the  States  may  deprive  persons  of  life,  liberty, 
and  property  without  due  process  of  law  (and  the  amendment  itself 
does  suppose  this),  why  should  not  Congress  proceed  at  once  to  pre- 
scribe due  process  of  law  for  the  protection  of  every  one  of  these 
fundamental  rights,  in  every  possible  case,  as  well  as  to  prescribe  equal 
privileges  in  inns,  public  conveyances,  and  theatres?  The  truth  is, 
that  the  implication  of  a  power  to  legislate  in  this  manner  is  based 
upon  the  assumption  that  if  the  States  are  forbidden  to  legislate  or  act 
in  a  particular  way  on  a  particular  subject,  and  power  is  conferred  upon 
Congress  to  enforce  the  prohibition,  this  gives  Congress  power  to  legis- 
late generally  upon  that  subject,  and  not  merely  power  to  provide  modes 
of  redress  against  such  State  legislation  or  action.  The  assumption  is 
certainly  unsound.  It  is  repugnant  to  the  Tenth  Amendment  of  the 
Constitution,  which  declares  tliat  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively  or  to  the  people. 


560  CIVIL   KIGIITS   CASES.  [ciIAr.  IV. 

AVc  have  not  overlooked  the  fact  that  the  fourth  section  of  the  Act 
now  under  consideration  has  been  held  by  this  court  to  be  constitu- 
tional. Tiiat  section  declares  "that  no  citizen,  possessing  all  other 
qualifications  which  are  or  may  be  prescribed  by  law,  shall  be  disquali- 
fied for  service  as  grand  or  petit  juror  in  any  court  of  the  United  States, 
or  of  an}"  State,  on  account  of  race,  color,  or  previous  condition  of  ser- 
vitude ;  and  an}-  officer  or  other  person  charged  with  any  duty  in  the 
selection  or  summoning  of  jurors  who  shall  exclude  or  fail  to  summon 
any  citizen  for  the  cause  aforesaid,  shall,  on  conviction  thereof,  be 
deemed  guilty  of  a  misdemeanor,  and  be  fined  not  more  than  five  thou- 
sand dollars."  In  Ex  parte  Virginia,  100  U.  S.  339,  it  was  held  that 
an  indictment  against  a  State  officer  under  this  section  for  excluding 
persons  of  color  from  the  jury  list  is  sustainable.  But  a  moment's 
attention  to  its  terms  will  show  that  the  section  is  entirel}'  corrective  in 
its  character.  Disqualifications  for  service  on  juries  are  only  created 
b}'  the  law,  and  the  first  part  of  the  section  is  aimed  at  certain  dis- 
qualifying laws,  namely,  those  which  make  mere  race  or  col()r  a  disquali- 
fication ;  and  the  second  clause  is  directed  against  those  who,  assuming 
to  use  the  authority  of  the  State  government,  carry  into  efl!ect  such  a 
rule  of  disqualification.  In  the  Virginia  case,  the  State,  through  its 
officer,  enforced  a  rule  of  disqualification  which  the  law  was  intended 
to  abrogate  and  counteract.  AYhether  the  statute-book  of  the  State 
actually  laid  down  any  such  rule  of  disqualification,  or  not,  the  State, 
through  its  officer,  enforced  such  a  rule :  and  it  is  against  such  State 
action,  through  its  officers  and  agents,  that  the  last  clause  of  the  section 
is  directed.  This  aspect  of  the  law  was  deemed  sufficient  to  divest 
it  of  any  unconstitutional  character,  and  makes  it  diff'er  widely  from 
the  first  and  second  sections  of  the  same  Act  which  we  are  now 
considering. 

These  sections,  in  the  objectionable  features  before  referred  to,  are 
diff"erent  also  from  the  law  ordinarily  called  the  "  Civil  Rights  Bill," 
originally  passed  April  9th,  1866,  14  Stat.  27,  ch.  31,  and  re-enacted 
with  some  modifications  in  sections  16,  17,  18,  of  the  Enforcement 
Act,  passed  May  31st,  1870,  16  Stat.  140,  ch.  114.  Tliat  law,  as  re- 
enacted,  after  declaring  that  all  persons  within  the  jurisdiction  of  the 
United  States  shall  have  the  same  right  in  every  State  and  Territory  to 
make  and  enforce  contracts,  to  sue,  be  parties,  give  evidence,  and  to 
the  full  and  equal  benefit  of  all  laws  and  proceedings  for  the  secui-ity 
of  persons  and  property  as  is  enjoyed  by  white  citizens,  and  shall  be 
subject  to  like  punishment,  pains,  penalties,  taxes,  licenses  and  exac- 
tions of  every  kind,  and  none  other,  any  law,  statute,  ordinance, 
regulation  or  custom  to  the  contrary  notwithstanding,  proceeds  to 
enact,  that  any  person  who,  under  color  of  any  law,  statute,  ordinance, 
regulation,  or  custom,  shall  subject,  or  cause  to  be  subjected,  any 
inhabitant  of  any  State  or  Territory  to  the  deprivation  of  any  rights 
secured  or  protected  by  the  preceding  section  (above  quoted),  or  to 
diflTerent  punishment,  pains,  or  penalties,  on  account  of  such  person 


CHAP.  IV.]  CIVIL   EIGHTS   CASES.  561 

being  an  alien,  or  by  reason  of  his  color  or  race,  than  is  prescvilicd  for 
tlie  punishment  of  citizens,  shall  he  deemed  guilty  of  a  misdemeanor, 
and  subject  to  fine  and  imprisonment  as  specilled  in  the  Act.  This  law 
is  clearh'  corrective  in  its  character,  intended  to  counteract  and  furnish 
redress  against  State  laws  and  proceedings,  and  customs  having  the 
force  of  law,  which  sanction  the  wrongful  acts  specified.  In  the  Revised 
Statutes,  it  is  true,  a  very  important  clause,  to  wit,  the  words  "  an}' 
law,  statute,  ordinance,  regulation  or  custom  to  the  contrary  notwith- 
standing," which  gave  the  declaratory  section  its  point  and  effect,  are 
omitted  ;  but  the  penal  part,  by  which  the  declaration  is  enforced,  and 
which  is  really  the  efl'ective  part  of  the  law,  retains  the  reference  to 
State  laws,  by  making  the  penalty  apply  onlj-  to  those  who  should  sub- 
ject parties  to  a  deprivation  of  their  rights  under  color  of  an}'  statute, 
ordinance,  custom,  etc.,  of  an}'  State  or  Territory :  thus  preserving  the 
corrective  character  of  the  legislation.  Rev.  St.  §§  1977,  1978,  1979, 
5510.  The  Civil  Rights  Bill  here  referred  to  is  analogous  in  its  char- 
acter to  what  a  law  would  have  been  under  the  original  Constitution, 
declaring  that  the  validity  of  contracts  should  not  be  impaired,  and  that 
if  any  person  bound  by  a  contract  should  refuse  to  comply  with  it,  under 
color  or  pretence  that  it  had  been  rendered  void  or  invalid  by  a  State 
law,  he  should  be  liable  to  an  action  upon  it  in  the  courts  of  the  United 
States,  with  the  addition  of  a  penalty  for  setting  up  such  an  unjust  and 
unconstitutional  defence. 

In  this  connection  it  is  proper  to  state  that  civil  rights,  such  as  are^^ 
guaranteed  bv  the  Constitution  against  State  aggression,  cannot  be 
impaired  by  the  wrongful  acts  of  individuals,  unsupported  by  State 
a_uthority  in  the  shape  of  laws,  customs,  or  judicial  or  executive  proceed- 
ings. The  wrongful  act  of  an  individual,  unsupported  by  any  such 
authority,  is  simply  a  private  wrong,  or  a  crime  of  that  individual ;  an 
invasion  of  the  riglits  of  the  injured  party,  it  is  true,  whether  they  affect 
his  person,  his  property,  or  his  reputation  ;  ,but  if  not  sanctioned  in 
some  way  by  the  State,  or  not  done  under  State  authority,  his  rights 
remain  in  full  force,  and  may  i)resumably  be  vindicated  by  resort  to  the 
laws  of  the  State  for  redress.  An  individual  cannot  deprive  a  man  of 
his  right  to  vote,  to  hold  property,  to  buy  and  sell,  to  sue  in  the  courts, 
or  to  be  a  witness  or  a  juror  ;  he  may,  by  force  or  fraud,  interfere  witli 
the  enjoyment  of  the  right  in  a  particular  case  ;  he  may  commit  an 
assault  against  the  person,  or  commit  murder,  or  use  ruffian  violence 
at  the  polls,  or  slander  the  good  name  of  a  fellow-citizen  ;  but,  unless 
protected  in  these  wrongful  acts  by  some  shield  of  State  law  or  State 
authority,  he  cannot  destroy  or  injure  the  right ;  he  will  only  render 
himself  amenable  to  satisfaction  or  punishment ;  and  amenable  therefor 
to  the  laws  of  the  State  where  the  wrongful  acts  are  committed.  Hence, 
in  all  those  cases  where  the  Constitution  seeks  to  protect  the  rights  of 
the  citizen  against  discriminative  and  unjust  laws  of  the  State  by  pro- 
hibiting such  laws,  it  is  not  individual  offences,  but  abrogation  and 
denial  of  rights,  which  it  denounces,  and  for  which  it  clothes  the  Con- 
voL.  I.  —  36 


562 


CIVIL   RIGHTS   CASES. 


[CILVP.  IV. 


gress  with  power  to  provide  a  remed}-.  This  abrogation  and  denial  of 
rights,  for  whicli  the  States  alone  were  or  could  be  responsible,  was  the 
great  seminal  and  fundamental  wrong  which  was  intended  to  be  reme- 
died. And  the  remed}'  to  be  provided  must  necessarily'  be  predicated 
upon  that  wrong.  It  must  assume  that  in  the  cases  provided  for,  the 
evil  or  wrong  actually  committed  rests  upon  some  State  law  or  State 
autliority  for  its  excuse  and  perpetration. 

Of  course,  these  remarks  do  not  apply  to  those  cases  in  which  Con- 
gress is  clothed  with  direct  and  plenary-  powers  of  legislation  over  the 
whole  subject,  accompanied  with  an  express  or  implied  denial  of  such 
power  to  the  States,  as  in  the  regulation  of  commerce  with  foreign 
nations,  among  the  several  States,  and  wnth  the  Indian  tribes,  tlie  coin- 
ing of  money,  the  establishment  of  post-offices  and  post-roads,  the 
declaring  of  war,  etc.  In  these  cases  Congress  has  power  to  pass  laws 
for  regulating  the  subjects  specified  in  every  detail,  and  the  conduct 
and  transactions  of  individuals  in  respect  thereof.  But  where  a  sub- 
ject is  not  submitted  to  the  general  legislative  power  of  Congress,  Ixit 
is  only  submitted  thereto  for  the  purpose  of  rendering  effective  some 
prohibition  against  particular  State  legislation  or  State  action  in  refer- 
ence to  that  subject,  the  power  given  is  limited  by  its  object,  and  any 
legislation  b}^  Congress  in  the  matter  must  necessarily  be  corrective  in 
its  character,  adapted  to  counteract  and  redress  the  operation  of  such 
proiiibited  State  laws  or  proceedings  of  State  officers. 

If  the  principles  of  interpretation  which  we  have  laid  down  are  cor- 
rect, as  we  deem  them  to  be  (and  they  are  in  accord  with  the  principles 
laid  down  in  the  cases  before  referred  to,  as  well  as  in  the  recent  case 
of  United  States  v.  Harris^  106  U.  S.  629),  it  is  clear  that  the  law  in 
question  cannot  be  sustained  by  an}-  grant  of  legislative  power  made  to 
Congress  b^'  the  Fourteenth  Amendment.  That  amendment  prohibits 
the  States  from  denying  to  any  person  the  equal  protection  of  the  laws, 
and  declares  that  Congress  shall  have  power  to  enforce,  hy  appropriate 
legislation,  the  provisions  of  the  amendment.  The  law  in  question, 
■without  any  reference  to  adverse  State  legislation  on  the  subject,  de- 
clares that  all  persons  shall  be  entitled  to  equal  accommodations  and 
privileges  of  inns,  public  conveyances,  and  places  of  public  amusement, 
and  imposes  a  penalty  upon  any  individual  who  shall  deny  to  an}'  citi- 
zen such  equal  accommodations  and  privileges.  This  is  not  corrective 
legislation ;  it  is  primary  and  direct ;  it  takes  immediate  and  absolute 
possession  of  the  subject  of  tlie  right  of  admission  to  inns,  public  con- 
veyances, and  places  of  amusement.  It  supersedes  and  displaces  State 
legislation  on  the  same  subject,  or  only  allows  it  permissive  force.  It 
ignores  such  legislation,  and  assumes  that  the  matter  is  one  that  belongs 
to  the  domain  of  national  regulation.  Whether  it  would  not  have  been 
a  more  effective  protection  of  the  rights  of  citizens  to  have  clothed  Con- 
gress with  plenary  power  over  the  whole  subject,  is  not  now  the  question. 
What  we  have  to  decide  is,  whether  such  plenary  [)Owcr  has  been  con- 
ferred npon  Congress  by  the  Fourteenth  Amendment;  and,  in  our 
judgment,  it  has  not. 


CHAP.  IV.]  CIVIL   PJGHT3    CASES.  563 

"We  have  discussed  the  question  presented  b}'  the  law  on  the  assump- 
tion that  a  right  to  enjoy  equal  accoumio(Uition  and  privileges  in  all 
inns,  public  conveyances,  and  places  of  public  amusement,  is  one  of 
the  essential  rights  of  the  citizen  which  no  State  can  abridge  or  interfere 
with.  Whether  it  is  such  a  right,  or  not,  is  a  different  question  which, 
in  the  view  we  have  taken  of  the  validit}'  of  the  law  on  the  ground 
alread}"  stated,  it  is  not  necessary  to  examine. 

We  have  also  discussed  the  validit}'  of  the  law  in  reference  to  cases 
arising  in  the  States  onl}' ;  and  not  in  reference  to  cases  arising  in  the 
Territories  or  the  District  of  Columbia,  which  are  subject  to  the  ple- 
nary legislation  of  Congress  in  every  branch  of  municipal  regulation. 
Whether  the  law  would  be  a  valid  one  as  applied  to  the  Territories  and 
the  District  is  not  a  question  for  consideration  in  the  cases  before  us  : 
the}'  all  being- cases  arising  within  the  limits  of  States.  And  whether 
Congress,  in  the  exercise  of  its  power  to  regulate  commerce  amongst 
the  several  States,  might  or  might  not  pass  a  law  regulating  rights  in 
public  conveyances  passing  from  one  State  to  another,  is  also  a  question 
which  is  not  now  before  us,  as  the  sections  in  question  are  not  conceived 
in  any  such  view. 

But  the  power  of  Congress  to  adopt  direct  and  primar}',  a^  distinguished 
from  corrective  legislation,  on  the  subject  in  hand,  is  sought,  in  the  sec- 
ond place,  from  the  Thirteenth  Amendment,  which  abolishes  slaver}'. 
This  amendment  declares  "  that  neither  slavery',  nor  involuntary'  servi- 
tude, except  as  a  punishment  for  crime,  whereof  the  part}'  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States,  or  an}'  place 
subject  to  tlieir  jurisdiction  ;  "  and  it  gives  Congress  power  to  enforce 
the  amendment  by  appropriate  legislation. 

This  amendment,  as  well  as  the  Fourteenth,  is  undoubtedly  self- 
executing  without  any  ancillary  legislation,  so  far  as  its  terms  are 
applicable  to  any  existing  state  of  circumstances.  By  its  own  unaided 
force  and  effect  it  abolished  slavery,  and  established  universal  freedom. 
Still,  legislation  may  be  necessary  and  proper  to  meet  all  the  various 
cases  and  circumstances  to  be  affected  by  it,  and  to  prescribe  proper 
modes  of  redress  for  its  violation  in  letter  or  spirit.  And  such  legisla- 
tion may  be  primary  and  direct  in  its  character;  for  the  amendment  is 
not  a  mere  prohibition  of  State  laws  establishing  or  upholding  slavery, 
but  an  absolute  declaration  that  slavery  or  involuntaij  servitude  shall 
not  exist  in  any  part  of  the  United  States. 

It  is  true  that  slavery  cannot  exist  without  law,  any  more  than 
property  in  lands  and  goods  can  exist  without  law  :  and,  therefore,  the 
Thirteenth  Amendment  may  be  regarded  as  nullifving  all  State  laws 
which  establish  or  uphold  slavery.  But  it  has  a  reflex  character  also, 
establishing  and  decreeing  universal  civil  and  political  freedom  through- 
out the  United  States ;  and  it  is  assumed,  that  the  power  vested  in 
Congress  to  enforce  the  article  by  appropriate  legislation,  clothes  Con- 
gress with  power  to  pass  all  laws  necessary  and  proper  for  abolishing 
all  badges  and  incidents  of  slavery  in  the  United  States :   and  upon 


564  CIVIL    RIGHTS   CASES.  [CHAP.  IV. 

this  assumption  it  is  claimed,  that  this  is  sufficient  authorit}'  for  declar- 
ing by  law  that  all  persons  shall  have  equal  accommodations  and 
privileges  in  all  inns,  public  convej'ances,  and  places  of  amusement ; 
the  argument  being,  that  the  denial  of  such  equal  accommodations  and 
privileges  is,  in  itself,  a  subjection  to  a  species  of  servitude  within  tlie 
meaning  of  the  amendment.  Conceding  the  major  proposition  to  be 
true,  that  Congress  has  a  right  to  enact  all  necessary  and  proper  laws 
for  the  obliteration  and  prevention  of  slavery  with  all  its  badges  and 
incidents,  is  the  minor  proposition  also  true,  that  the  denial  to  any 
person  of  admission  to  the  accommodations  and  privileges  of  an  inn, 
a  public  conve\-ance,  or  a  theatre,  does  subject  that  person  to  any  form 
of  servitude,  or  tend  to  fasten  upon  him  any  badge  of  slavery?  If  it 
does  not,  then  power  to  pass  the  law  is  not  found  in  the  Thirteenth 
Amendment. 

In  a  ver}^  able  and  learned  presentation  of  the  cognate  question  as  to 
the  extent  of  the  rights,  privileges  and  immunities  of  citizens  which 
cannot  rightfulh'  be  abridged  by  State  laws  under  the  Fourteenth 
Amendment,  made  in  a  former  case,  a  long  list  of  burdens  and  dis- 
abilities of  a  servile  character,  incident  to  feudal  vassalage  in  France, 
and  which  were  abolished  b}-  the  decrees  of  the  National  Assembh', 
was  presented  for  the  purpose  of  showing  that  all  inequaUties  and 
observances  exacted  by  one  man  from  another  were  servitudes,  or 
badges  of  slavery,  which  a  great  nation,  in  its  effort  to  establish  uni- 
versal libert}',  made  haste  to  wipe  out  and  destro}-.  But  these  were 
servitudes  imposed  by  the  old  law,  or  by  long  custom,  which  had  the 
force  of  law,  and  exacted  b}-  one  man  from  another  without  the  latter's 
consent.  Should  any  such  servitudes  be  imposed  by  a  State  law,  there 
can  be  no  doubt  that  the  law  would  be  repugnant  to  the  Fourteenth, 
no  less  than  to  the  Thirteenth  Amendment ;  nor  any  greater  doubt  that 
Congress  has  adequate  power  to  forbid  Siuy  such  servitude  from  being 
exacted. 

But  is  there  any  similarity  between  such  servitudes  and  a  denial  b}' 
the  owner  of  an  inn,  a  public  conveyance,  or  a  theatre,  of  its  accommo- 
dations and  privileges  to  an  individual,  even  though  the  denial  be 
founded  on  the  race  or  color  of  that  individual?  Where  does  any 
slavery  or  servitude,  or  badge  of  either,  arise  from  such  an  act  of 
denial?  Whether  it  might  not  be  a  denial  of  a  right  which,  if  sanc- 
tioned by  the  State  law,  would  be  obnoxious  to  the  prohibitions  of  the 
Fourteenth  Amendment,  is  another  question.  But  what  has  it  to  do 
with  the  question  of  slavery? 

It  may  be  that  by  the  Black  Code  (as  it  was  called),  in  the  times 
when  slavery  prevailed,  the  proprietors  of  inns  and  public  conveyances 
were  forbidden  to  receive  persons  of  the  African  race,  because  it  might 
assist  slaves  to  escape  from  the  control  of  their  masters.  This  was 
merely  a  means  of  preventing  such  escapes,  and  was  no  part  of  the 
servitude  itself.  A  law  of  that  kind  could  not  have  any  such  object 
now,  however  justly  it  might  be  deemed  an  invasion  of  the  party's  legal 


CHAP,  IV.]  CIVIL   RIGHTS   CASES.  565 

right  as  a  citizen,  and  amenable  to  the  prohibitions  of  the  Fourteenth 
Amendment. 

The  long  existence  of  African  slaverj'  in  this  country  gave  us  ver^' 
distinct  notions  of  what  it  was,  and  what  were  its  necessar}'  incidents. 
Compulsory  service  of  the  slave  for  the  benefit  of  the  master,  restraint 
of  his  movements  except  by  the  master's  will,  disabilit}^  to  hold  prop- 
ertv,  to  make  contracts,  to  have  a  standing  in  court,  to  be  a  witness 
against  a  white  person,  and  such  like  burdens  and  incapacities,  were 
the  inseparable  incidents  of  the  institution.  Severer  punishments  for 
crimes  were  imposed  on  the  slave  than  on  free  persons  guilty  of  the 
same  ofifences.  Congress,  as  we  have  seen,  by  the  Civil  Rights  Bill  of 
1866,  passed  in  view  of  the  Thirteenth  Amendment,  before  the  Four- 
teenth was  adopted,  undertook  to  wipe  out  these  burdens  and  disabili- 
ties, the  necessarj'  incidents  of  slavery,  constituting  its  substance  and 
visible  form  ;  and  to  secure  to  all  citizens  of  every  race  and  color,  and 
without  regard  to  previous  servitude,  those  fundamental  rights  which 
are  the  essence  of  civil  freedom,  namely,  the  same  right  to  make  and 
enforce  contracts,  to  sue,  be  parties,  give  evidence,  and  to  inherit, 
purchase,  lease,  sell  and  convey  propert}^,  as  is  enjoyed  by  white  citi- 
zens. "Whether  this  legislation  was  fully  authorized  bj'  the  Tliirteenth 
Amendment  alone,  without  the  support  which  it  afterward  received 
from  the  Fourteenth  Amendment,  after  the  adoption  of  which  it  was 
re-enacted  with  some  additions,  it  is  not  necessary  to  inquire.  It  is 
referred  to  for  the  purpose  of  showing  that  at  that  time  (in  1866)  Con- 
gress did  not  assume,  under  the  authority  given  by  the  Thirteenth 
Amendment,  to  adjust  what  may  be  called  the  social  rights  of  men  and 
races  in  the  community;  but  only  to  declare  and  vindicate  those  funda- 
mental rights  which  appertain  to  the  essence  of  citizenship,  and  the 
enjo3^raent  or  deprivation  of  which  constitutes  the  essential  distinction 
between  freedom  and  slaverj'. 

We  must  not  forget  that  the  province  and  scope  of  the  Thirteenth 
and  Fourteenth  Amendments  are  different ;  the  former  simply  abol- 
ished slavery :  the  latter  prohibited  the  States  from  abridging  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  from  depriv- 
ing them  of  life,  liberty,  or  property  without  due  process  of  law,  and 
from  denying  to  au}^  tlie  equal  protection  of  the  laws.  The  amend- 
ments are  different,  and  the  powers  of  Congress  under  them  are  different. 
What  Congress  has  power  to  do  under  one,  it  may  not  have  power  to 
do  under  the  other.  Under  the  Thirteenth  Amendment,  it  has  only  to 
do  with  slavery  and  its  incidents.  Under  the  Fourteenth  Amendment, 
it  has  power  to  counteract  and  render  nugatorj-  all  State  laws  and  pro- 
ceedings which  have  the  effect  to  abridge  an\'  of  the  privileges  or 
immunities  of  citizens  of  the  United  States,  or  to  deprive  them  of  life, 
libert}-  or  property  without  due  process  of  law,  or  to  deny  to  any  of 
them  the  equal  protection  of  the  laws.  Under  the  Thirteenth  Amend- 
ment, the  legislation,  so  far  as  necessary  or  proper  to  eradicate  all 
forms  and  incidents  of  slaver}-  and  involuntar}-  servitude,  maj-  be  direct 


566  CIVIL   EIGHTS   CASES.  [CHAP.  IV. 

and  priraaiy,  operating  upon  the  acts  of  individuals,  whetlier  sanctioned 
by  State  legislation  or  not ;  under  the  Fourteenth,  as  we  have  already 
shown,  it  must  necessarily  be,  and  can  only  be,  corrective  in  its  char- 
acter, addressed  to  counteract  and  afford  relief  against  State  regulations 
or  i)roccedings. 

The  only  question  under  the  present  head,  therefore,  is,  whether  the 
refusal  to  any  persons  of  the  accommodations  of  an  inn,  or  a  public 
conveyance,  or  a  place  of  public  amusement,  b}'  an  individual,  and 
without  any  sanction  or  support  from  any  State  law  or  regulation,  does 
intlict  upon  such  persons  any  manner  of  servitude,  or  form  of  slavery, 
as  those  terms  are  understood  in  this  country  ?  Many  wrongs  may  be 
obnoxious  to  the  prohibitions  of  the  Fourteenth  Amendment  which  are 
not,  in  any  just  sense,  incidents  or  elements  of  slaver}'.  Such,  for 
example,  would  be  the  taking  of  private  property  without  due  process 
of  law  ;  or  allowing  persons  who  have  committed  certain  crimes  (horse- 
stealing, for  example)  to  be  seized  and  hung  b}'  the  posse  coniitatus 
without  regular  trial ;  or  denying  to  an}'  person,  or  class  of  persons,  the 
right  to  pursue  an}'  peaceful  avocations  allowed  to  others.  What  is 
called  class  legislation  would  belong  to  this  category,  and  would  be 
obnoxious  to  the  prohibitions  of  the  Fourteenth  Amendment,  but  would 
not  necessarily  be  so  to  the  Thirteenth,  when  not  involving  the  idea  of 
any  subjection  of  one  man  to  another.  The  Thirteenth  Amendment 
has  respect,  not  to  distinctions  of  race,  or  class,  or  color,  but  to  slavery. 
The  Fourteenth  Amendment  extends  its  protection  to  races  and  classes, 
and  prohibits  any  State  legislation  which  has  the  effect  of  denying 
to  any  race  or  class,  or  to  any  individual,  the  equal  protection  of 
the  laws. 

Now,  conceding,  for  the  sake  of  the  argument,  that  the  admission  to 
an  inn,  a  public  conveyance,  or  a  place  of  public  amusement,  on  equal 
terms  with  all  other  citizens,  is  the  right  of  every  man  and  all  classes 
of  men,  is  it  any  more  than  one  of  those  rights  which  the  States  by  the 
Fourteenth  Amendment  are  forbidden  to  deny  to  any  person?  And  is 
the  Constitution  violated  until  the  denial  of  the  right  has  some  State 
sanction  or  authority  ?  Can  the  act  of  a  mere  individual,  the  owner  of 
the  inn,  the  public  conveyance  or  place  of  amusement,  refusing  the 
accommodation,  be  justly  regarded  as  imposing  any  badge  of  slavery  or 
servitude  upon  the  applicant,  or  only  as  inflicting  an  ordinary  civil 
injury,  properly  cognizable  by  the  laws  of  the  State,  and  presumably 
subject  to  redress  by  those  laws  until  the  contrary  appears  ? 

After  giving  to  these  questions  all  the  consideration  which  their 
importance  demands,  we  are  forced  to  the  conclusion  that  such  an  act 
of  refusal  has  nothing  to  do  with  slavery  or  involuntary  servitude,  and 
that  if  it  is  violative  of  any  right  of  the  party,  his  redress  is  to  be 
sought  under  the  laws  of  the  State  ;  or  if  those  laws  are  adverse  to  his 
i-ights  and  do  not  protect  him,  his  remedy  will  be  found  in  the  corrective 
legislation  which  Congress  has  adopted,  or  may  adopt,  for  counteracting 
the  effect  of  State  laws,  or  State  action,  prohibited  by  the  Fourteenth 


CHAP.  IV.] 


CIVIL   EIGHTS   CASES. 


567 


Amendment.  It  would  be  running  the  slaveiy  argument  into  the  ground 
to  malie  it  apply  to  every  act  of  discrimination  wliicli  a  person  nuv^-  see 
fit  to  make  as  to  the  guests  he  will  entertain,  or  as  to  the  people  he  will 
take  into  his  coach  or  cab  or  car,  or  admit  to  his  concert  or  theatre,  or 
deal  with  in  other  matters  of  intercourse  or  business.  Innkeepers  and 
public  carriers,  bj'  the  laws  of  all  the  States,  so  far  as  we  are  aware, 
are  bound,  to  the  extent  of  their  facilities,  to  furnish  proper  accommo- 
dation to  all  unobjectionable  persons  who  in  good  faith  apply  for  thein. 
If  the  laws  themselves  make  an}'  unjust  discrimination,  amenable  to 
the  prohibitions  of  the  Fourteenth  Amendment,  Congress  has  full  power 
to  afford  a  remed\'  under  that  amendment  and  in  accordance  with  it. 

When  a  man  has  emerged  from  slaver}-,  and  by  the  aid  of  beneficent 
legislation  has  shaken  off  the  inseparable  concomitants  of  that  state, 
there  must  be  some  stage  in  the  progress  of  his  elevation  when  he  takes 
the  rank  of  a  mere  citizen,  and  ceases  to  be  the  special  favorite  of  the 
laws,  and  when  his  rights  as  a  citizen,  or  a  man,  are  to  be  protected  in 
the  ordinary  modes  b}'  which  other  men's  rights  are  protected.  There 
were  thousands  of  free  colored  people  in  this  country'  before  the  aboli- 
tion of  slavery,  enjoying  all  the  essential  rights  of  life,  liberty  and 
property  the  same  as  white  citizens  ;  yet  no  one,  at  that  time,  thought 
that  it  was  any  invasion  of  his  personal  status  as  a  freeman  because  he 
was  not  admitted  to  all  the  privileges  enjoj'ed  by  white  citizens,  or 
because  he  was  subjected  to  discriminations  in  the  enjoyment  of  accom- 
modations in  inns,  public  conveyances  and  places  of  amusement.  Mere 
discriminations  on  account  of  race  or  color  were  not  regarded  as  badges 
of  slavery.  If,  since  that  time,  the  enjoyment  of  equal  rights  in  all 
these  respects  has  become  established  by  constitutional  enactment,  it  is 
not  by  force  of  the  Thirteenth  Amendment  (which  merel}'  abolishes 
slavery),  but  by  force  of  the  Fourteenth  and  Fifteenth  Amendments. 

On  the  whole  we  are  of  opinion,  that  no  countenance  of  authority 
for  the  passage  of  the  law  in  question  can  be  found  in  either  the  Thir- 
teenth or  Fourteenth  Amendment  of  the  Constitution  ;  and  no  other 
ground  of  authorit}'  for  its  passage  being  suggested,  it  must  necessaril}' 
be  declared  void,  at  least  so  far  as  its  operation  in  the  several  States  is 
concerned. 

This  conclusion  disposes  of  the  cases  now  under  consideration.  In 
the  cases  of  the  United  States  v.  Michael  Hyan^  and  of  liichard  A. 
Robinson  and  Wife  v.  The  Memphis  &  Charleston  Railroad  Company, 
the  judgments  must  be  affirmed.  In  the  other  cases,  the  answer  to  be 
given  will  be  that  the  first  and  second  sections  of  the  Act  of  Congress 
of  March  1st,  1875,  entitled  "An  Act  to  protect  all  Citizens  in  their 
Civil  and  Legal  Rights,"  are  unconstitutional  and  void,  and  tliat  judgment 
should  be  rendered  upon  the  several  indictments  in  those  cases  accord- 
ingly. And  it  is  so  ordered.^ 

[Harlan,  J.,  gave  a  dissenting  opinion.] 

1  Compare  The  Civil  Rights  Bill,  Hughes,  541  (1875),  Younger  v.  Judah,  111  Mo. 
303  (1892).  — Ed. 


%.  lo  t-^ 


568  PEOPLE  V.   KING.  [chap.  IV. 


PEOPLE  V.   KING. 

New  York  Colkt  of  Appeals.     1888. 

[110  N.  Y.  418.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  entered  upon  an  order  made  Novem- 
ber 9,  188G,  which  affirmed  a  judgment  of  the  Court  of  Sessions  of 
Chenango  Count}-,  entered  upon  a  verdict  convicting  defendant  of  a 
misdemeanor.     (Reported  below,  42  Hun,  18G.) 

The  sub&tanee  of  the  indictment  and  the  material  facts  are  stated  in 
the  opinion. 

E.  H.  Frinclle,  for  appellant. 
George  P.  Pudney^  for  respondent. 

Andrews,  J.  Section  383  of  the  Penal  Code  declares  that  "<iio  citi- 
zen of  this  State  can,  by  reason  of  race,  color,  or  previous  condition  of 
servitude,  be  excluded  from  the  equal  eujoj'ment  of  any  accommoda- 
tion, facility,  or  privilege  furnished  by  innkeepers  or  common  carriers, 
or  b}'  owners,  managers,  or  lessees  of  theatres  or  other  places  of 
amusement,  by  teachers  and  officers  of  common  schools  and  public 
institutions  of  learning,  or  bj-  cemetery  association^"  The  violation  of 
this  section  is  made  a  misdemeanor,  punishable  by  fine  of  not  less  than 
fifty  nor  more  than  five  hundred  dollars. 

The  defendant  and  one  Scott,  in  the  3-ear  1884,  were  the  owners  and 

proprietors  of  a  skating-rink  in  the  village  of  Norwich,  in  this  State, 

erected  in  that  3'ear  upon  their  own  lands.    Prior  to  June  13,  1884,  the}' 

announced,  through  the  public  press  and  otherwise,  that  the  rink  would 

^^-f/tujbe  opened  on  the  evening  of  that  da}-,  and  the}'  arranged  with  the 

5    _     "Apollo"    Club,  of  Binghamton,  to   attend  the  opening  to  give  an 

■H'^*'^'^'^     exhibition  of  roller-skating,  the  profits  of  the  entertainment  to  be  divided 

AjL^X-<x.,<ru.  between  the  club  and  the  proprietors  of  the  rink.     Tickets  of  admission 

,1         ■      were  sold  on  the  evening  in  question  by  the  agents  of  the  proprietor, 

^iu:  L-L^~  ^^  ^j^g  office  on  the  premises,  but  persons  who  had  not  procured  tickets 

^^j^-JLZ  U  were  admitted  on  payment  of  the  charge  for  admission  at  the  door. 

~J      t^        Several  hundred  persons  attended  the  exhibition.     During  the  evening 

three  colored  men  made  application  to  purchase  tickets  at  the  office 

^  where  tickets  were  sold,  but  the  agents  of  the  proprietors,  having  charge 

t  lJ^  Lmw ^^  ^^^^  stxXe,  acting  in  accordance  wath  the  instructions  of  the  defendant, 

J)  •  "^     refused  to  sell  them  tickets,  because  they  were  persons  of  color,  and 

^^"'^'"^■''^^they  were  so  informed  at  the  time.     The  defendant  was  indicted  under 

(X-       the  section  of  the  Penal  Code  above  quoted,  the  indictment  alleging,  in 

f)  X,ra):i  substance,  that  the  defendant,  being  one  of  the  owners  of  a  skating- 

'j     I   rink,  a  place  of  amusement,  did,  on  the  day  named,  exclude  from  said 

,  skating-rink,  and  from  the  equal  enjoyment  of  any  and  all  accommoda- 

■^^  d-M^'   XXqxx^  facility,  and  privilege  of  said  skating-rink,  George  F.  Breed,  Wil- 

J.   ^x^v-ux     liam  "Wyckoff,  Charles  Jlobbins,  and  others,  all  being  citizens  of  the 

1^      Dux^^T-C^-Y^    ihfxJXu    (i^^'^-n.Jl.    ^^(-^<-pA^^  (Ld-iUxD  —     dVin^  -MCiO  -t^M.^^.     G-  Zl  ■ 


1, 


CHAP.  IV.]  PEOPLE   V.   KING.  569 

State,  by  reason  of  race  and  color,  etc.  The  objection  is  now  taken 
that  the  indictment  is  defective,  in  substance,  in  not  averring  the  means 
by  which  the  exclusion  of  the  persons  mentioned  was  effected.  The 
objection  is  untenable.  The  indictment  follows  tlie  statute,  and  it  was 
not  necessary  to  aver,  with  an}-  greater  parti cularitj-  than  was  used,  the 
circumstances  constituting  the  offence.  People  v.  WeU^  lOG  N.  Y.  293- 
Xor  is  there  any  force  in  the  suggestion  that  proof  of  a  refusal  to  sell 
to  the  colored  men  tickets  of  admission  at  the  office  did  not  support  the 
allegation  that  they  were  excluded  from  the  rink.  The  defendant  pro- 
vided tickets  as  evidence  of  the  right  of  persons  having  them  to  admis- 
sion. He  refused  to  furnish  this  evidence  to  the  persons  named  in  the 
indictment,  which  was  furnished  to  all  others  who  applied,  placing  the 
refusal  on  a  ground  which  justified  the  applicants  in  supposing,  and 
the  jur}-  in  finding,  that  the  defendant  thereby  intended  to  exclude 
them,  and  did  thereby  exclude  them,  from  the  rink. 

The  real  question  in  the  case  arises  upon  the  contention  of  the  coun- 
sel for  the  appellant  that  the  statute  upon  which  the  indictment  is 
founded,  so  far  as  it  undertakes  to  prescribe  that  the  owner  of  a  place 
of  amusement  shall  not  exclude  therefrom  any  citizen  b}'  reason  of  race, 
color,  or  previous  condition  of  servitude,  is  an  unconstitutional  inter- 
ference with  private  rights,  in  that  it  restricts  the  owner  of  property"  in 
respect  to  its  lawful  use,  and  as  to  an  incident  which  is  not  a  legitimate 
matter  of  regulation  by  law. 

The  legislation  in  question  is  not  without  precedent.  The  Act  of  Con- 
gress of  March  1,  1875,  entitled  ''An  Act  to  protect  all  Persons  in  their 
Civil  Rights"  (18  U.  S.  Stat,  at  Large,  335),  contains  a  section  identical 
in  import  with  section  383  of  the  Penal  Code,  except  that  it  is  still 
broader  in  its  scope,  and  secures,  not  to  citizens  onl}',  but  to  all  persons 
within  the  jurisdiction  of  the  United  States,  the  equal  enjoyment  of  the 
accommodation,  advantages,  facilities,  and  privileges  of  "inns,  public 
conveyances  on  land  and  water,  theatres,  and  other  places  of  public 
amusement,  subject  only  to  the  limitations  established  bj'  law,  and 
applicable  to  citizens  of  every  race  and  color,  regardless  of  any  pre- 
vious condition  of  servitude."  The  Civil  Rights  Act  of  Mississippi, 
passed  Februar}'  7,  1873,  contains  a  similar  provision.  In  Louisiana, 
the  matter  is  made  the  subject  of  a  constitutional  enactment,  ordaining 
tliat  "  all  persons  shall  enjoy  equal  rights  and  privileges,  etc.,  in  every 
place  of  public  resort ;  "  and  this  was  supplemented  by  Acts  of  the 
Legislature  of  Louisiana,  passed  in  1870  and  1871. 

It  is  not  necessary,  at  this  day,  to  enter  into  any  argument  to  prove 
that  the  clause  in  the  Bill  of  Rights  that  no  person  shall  "  be  deprived 
of  life,  libert}',  or  property  witliout  due  process  of  law  "  (Const,  art.  1, 
§  G),  is  to  have  a  large  and  liberal  interpretation,  and  that  the  funda- 
mental principle  of  free  government,  expressed  in  these  words,  protects 
not  only  life,  libertj-,  and  property,  in  a  strict  and  technical  sense, 
against  unlawful  invasion  b}'  the  government,  in  the  exertion  of  gov- 
ernmental power  in  any  of  its  departments,  but  also  protects  every 


570  PEOPLE   V.   KING.  [CHAP.  IV. 

essential  incident  to  the  enjrnment  of  those  rights.  The  interpretation 
of  this  time- honored  chuise  has  been  considered,  in  recent  cases  in  this 
conrt,  with  a  fuhiess  and  completeness  vvhicli  leaves  nothing  to  be  said 
b}'  way  of  support  or  illustration.  Wynehanier  v.  Ptople,  13  N.  Y. 
378  -,  Bertholfx.  O'Eeilhj,  74  Id.  509  ;  In  re  Jacobs,  08  Id.  98  ;  People 
V.  Marx,  99  Id.  377. 

But,  as  the  language  of  the  constitutional  prohibition  implies,  life,  lib- 
erty, and  property  may  be  justly  affected  by  law,  and  the  statutes 
abound  in  examples  of  legislation  limiting  or  regulating  the  use  of  pri- 
vate propert}-,  restraining  freedom  of  personal  action  or  controlling 
individual  conduct,  which,  by  common  consent,  do  not  transcend  the 
limitations  of  the  Constitution.  This  legislation  is  under  what,  for 
lack  of  a  better  name,  is  called  the  police  power  of  the  State,  —  a 
power  incapable  of  exact  definition,  but  the  existence  of  which  is  essen- 
tial to  ever}'  well-ordered  government.  B}'  means  of  this  power  tlie 
legislature  exercises  a  supervision  over  matters  involving  the  common 
weal,  and  enforces  the  observance,  b}'  each  individual  member  of  societ}', 
of  the  duties  which  he  owes  to  others  and  to  the  community  at  large. 
It  ma}'  be  exerted  whenever  necessary  to  secure  the  peace,  good  order, 
health,  morals,  and  general  welfare  of  the  communit}',  and  the  propri- 
ety of  its  exercise  within  constitutional  limits  is  purely  a  matter  of 
legislative  discretion  with  which  the  courts  cannot  interfere.  In  short, 
the  police  power  covers  a  wide  range  of  particular  unexpressed  powers 
reserved  to  the  State  affecting  freedom  of  action,  personal  conduct, 
and  the  use  and  control  of  propert}'.  "  All  property,"  said  Shaw,  C.  J., 
in  Comm.  v.  Alger,  7  Cush.  85,  "  is  held  subject  to  those  general  regu- 
lations which  are  necessary  to  the  common  good  and  general  welfare." 
This  power,  of  course,  is  subject  to  limitations.  The  line  of  demarca- 
tion between  its  lawful  and  unlawful  exercise  it  is  often  difficult  to 
trace.  We  have  held  that  it  cannot  be  exerted  for  the  destruction  of 
property  lawfully  held  and  acquired  under  existing  laws,  or  of  any  of 
the  essential  attributes  of  such  property  (Wynehanier  v.  People,  supra)  ; 
nor  to  deprive  an  individual  of  the  right  to  pursue  a  lawful  business  on 
bis  own  premises,  not  injurious  to  the  public  health,  or  otherwise  inimical 
to  the  public  interests  {In  re  Jacobs,  supra) ;  nor  to  prevent  the  manufac- 
ture or  sale  of  a  useful  article  of  food.  People  v.  Marx,  supra.  But 
we  have  held  that  the  legislature  may  lawfully  subject  the  owner  of 
premises  to  pecuniary  liability  for  injuries  resulting  from  intoxication 
caused  in  whole  or  in  part  by  the  use  of  liquor  sold  by  the  lessee 
therein,  although  the  sale  itself  was  lawful  {Bertholf  v.  O'Peilly, 
supra) ;  and  it  was  held  by  the  Supreme  Court  of  the  United  States,  in 
Mwin  V.  Illinois,  94  U.  S.  113,  that  a  State  law  regulating  the  licensing 
of  elevators  for  the  handling  and  storage  of  grain,  and  fixing  a  maxi- 
mum charge  therefor,  was  not  repugnant  to  that  part  of  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States  which  ordains 
that  "no  State  shall  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law." 


CHAP.  IV.]  PEOPLE   V.   KING.  571 

In  considering  whether  the  enactment  of  section  383  of  the  Penal 
Code  transcends  legislative  power,  it  is  important  to  have  in  mind  the 
purpose  of  the  enactment.  It  cannot  be  doubted  that  it  was  enacted 
with  special  reference  to  citizens  of  African  descent,  nor  is  there  an}' 
doubt  that  the  policy  which  dictated  the  legislation  was  to  secure  to 
such  persons  equal  rights  with  white  persons  to  the  facilities  furnished 
by  carriers,  innkeepers,  theatres,  schools,  and  places  of  public  amuse- 
ment. The  race-prejudice  against  persons  of  color,  which  had  its  root, 
in  part  at  least,  in  the  system  of  slavery,  was  b}-  no  means  extinguished 
when,  by  law,  the  slaves  became  freemen  and  citizens.  But  this  great 
act  of  justice  towards  an  oppressed  and  enslaved  people  imposed  upon 
the  nation  great  responsibilities.  They  became  entitled  to  all  the  privi- 
leges of  citizenship,  although  the  great  mass  of  them  were  poorh'  pre- 
pared to  discharge  its  obligations.  The  nation  secured  the  inviolability 
of  the  freedom  of  the  colored  race  and  their  rights  as  citizens  b}'  the 
Thirteenth,  Fourteenth,  and  Fifteenth  Amendments  of  the  Constitution 
of  the  United  States.  The  Fourteenth  Amendment  ordained,  among 
other  tilings,  that  ''  no  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United  States, 
.  .  .  nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws."  The  construction  of  the  Fourteenth  Amendment  has 
come  under  the  consideration  of  the  Supreme  Court  of  the  United 
States  in  several  cases,  among  others,  in  two  cases  known  as  the  jury 
cases,  —  Strcmcler  v.  WestVirginia,  100  U.  S.  303,  and  Ex imrte  Vir- 
ginia^ Id.  339.  In  the  case  first  mentioned  it  was  held  that  a  State 
law  confining  the  selection  of  jurors  to  white  persons  was  in  contraven- 
tion of  the  Fourteenth  Amendment ;  and  in  the  second,  that  the  action 
of  the  State  officer  invested  with  the  power  to  select  jurors,  excluding 
all  colored  persons  from  the  lists,  was  also  repugnant  to  its  provisions. 
In  Strauder  v.  West  Virginia^  Strong,  J.,  speaking  for  the  majority  of 
the  court,  said  :  •'  The  words  of  the  amendment,  it  is  true,  are  prohib- 
itory, but  they  contain  a  necossar}-  implication  of  a  positive  immunit}' 
or  right  most  valuable  to  the  colored  men, — the  right  of  exemption 
from  unfriendly  legislation  against  them  distinctively  as  colored  ;  ex- 
emption from  legal  discrimination  implying  inferiority  in  civil  societ}', 
lessening  the  security  of  their  enjoyment  of  the  rights  which  others 
enjoy,  and  discriminations  which  are  steps  toward  reducing  them  to  the 
condition  of  a  subject  race." 

AYe  have  referred  to  these  amendments  and  to  the  cases  constru- 
ing them,  because  they  disclose  the  fact  that,  in  the  judgment  of  the 
nation,  the  public  welfare  required  that  no  State  should  be  permitted 
to  establish  b}^  law  such  a  discrimination  against  persons  of  color  as 
was  made  by  the  defendant  in  this  case,  for  we  think  it  incontestable 
that  a  State  law  excluding  colored  people  from  admission  to  places  of 
public  amusement  would  be  considered  as  a  violation  of  the  Federal 
Constitution.  It  would  seem,  indeed,  in  view  of  the  Act  of  March  1, 
1875,  that,  in  the  opinion  of  Congress,  the  amendments  had  a  much 


572  PEOPLE   V.   KING.  [CHAP.  IV. 

broader  scope,  and  prevented  not  only  discriminating  legislation  of 
this  character  by  tlie  State,  but  also  such  discrimination  by  individuals, 
since  the  jurisdiction  of  Congress  to  pass  a  law  forbidding  the  exclusion 
of  persons  of  color  from  places  of  public  amusement,  and  annexing  a 
penalty  for  its  violation,  must  be  derived,  if  it  exists,  from  the  Thir- 
teenth, Fourteenth,  and  Fifteenth  Amendments.^  It  cannot  be  doubted 
that  before  the}'  were  adopted  the  power  to  enact  such  a  regulation 
resided  exclusively  in  the  States.  But  independently  of  the  inference 
arising  from  the  solemn  assertion  by  the  nation,  through  its  action  in 
adopting  the  amendments,  that  legal  discriminations  against  persons  of 
color  by  the  action  of  States  was  opposed  to  the  public  welfare,  it  is 
not  difficult  to  see  that  there  is  a  public  interest  which  justified  the 
enactment  of  section  385  of  the  Code,  provided  it  did  not  overstep  the 
limits  of  lawful  interference  with  the  uses  of  private  property. 
The  members  of  the  African  race,  born  or  naturalized  in  this  countr}", 
are  citizens  of  the  States  where  the}*  reside  and  of  the  United  States. 
Both  justice  and  the  public  interest  concur  in  a  policy  which  shall  ele- 
vate them  as  individuals  and  relieve  them  from  oppressive  or  degrading 
discrimination,  and  which  shall  encourage  and  cultivate  a  spirit  which 
will  make  them  self  respecting,  contented,  and  loyal  citizens,  and  give 
them  a  fair  chance  in  the  struggle  of  life,  weighted,  as  they  are  at  best, 
with  so  many  disadvantages.  It  is  evident  tliat  to  exclude  colored 
people  from  places  of  public  resort  on  account  of  their  race  is  to  fix 
upon  them  a  brand  of  inferiority,  and  tends  to  fix  theii-  position  as,  a 
servile  and  dependent  people.  It  is,  of  course,  impossible  to  enforce 
social  equality  by  law.  But  the  law  in  question  simply  insures  to 
colored  citizens  the  right  to  admission,  on  equal  terms  with  others,  to 
public  resorts  and  to  equal  enjoyment  of  privileges  of  a  qnasi  public 
character.  The  law  cannot  be  set  aside,  because  it  has  no  basis  in  the 
public  interest,  and  the  promotion  of  the  public  good  is  the  main  pur- 
pose for  which  the  police  power  may  be  exerted  ;  and  whether,  in  a 
given  case,  it  shall  be  exerted  or  not,  the  legislature  is  the  sole  judge, 
and  a  law  will  not  be  held  invalid  because,  in  the  judgment  of  a  court, 
its  enactment  was  inexpedient  or  unwise. 

The  final  question,  therefore,  is,  does  the  law  in  question  invade  the 
right  of  propert}'  protected  by  the  Constitution?  The  State  could  not 
pass  a  law  making  the  discrimination  made  by  the  defendant.  The 
amendments  to  the  Federal  Constitution  would  forbid  it.  May  not  the 
State  impose  upon  individuals  having  places  of  public  resort  the  same 
restriction  which  the  Federal  Constitution  places  upon  the  State?  It 
is  not  claimed  that  that  part  of  the  statute  giving  to  colored  people  equal 
rights,  at  the  hands  of  innkeepers  and  common  carriers,  is  an  infraction 
of  the  Constitution.  But  the  business  of  an  innkeeper  or  a  common  car- 
rier, when  conducted  by  an  individual,  is  a  private  business,  receiving 
no  special  privilege  or  protection  from  the  State.     B3-  the  common  law, 

1  See  the  Civil  Eights  Cases,  109  U.  S.  3 ;  ante,  p.  554.  —  Ed. 


CHAP.  IV.]  PEOPLE   V.    KIXG.  573 

innkeepers  and  common  cjirriers  are  bound  to  furnish  equal  facilities  to 
all,  without  discrimination,  because  public  polic}'  requires  them  so  to 
do.  The  business  of  conducting  a  theatre  or  place  of  public  amusement 
is  also  a  private  business  in  which  txwy  one  may  engage,  in  the  absence 
of  anj'  statute  or  ordinance.  But  it  has  been  the  practice,  wiiich  has 
passed  unchallenged,  for  the  legislature  to  confer  upon  municipalities 
the  power  to  regulate  by  ordinance  the  licensing  of  tlieaties  and  shows, 
and  to  enforce  restrictions  relating  to  such  places,  in  tne  public  inter- 
est, and  no  one  claims  that  such  statutes  are  an  invasion  of  the  right  of 
liberty  or  property  guaranteed  by  the  Constitution. 

The  statute  in  question  assumes  to  regulate  the  conduct  of  owners  or 
managers  of  places  of  public  resort  in  the  respect  mentioned.  The 
principle  stated  b}^  Waite,  C.  J.,  in  Munn  v.  Illinois,  supra,  which 
received  the  assent  of  the  majority  of  the  court,  applies  in  this  case. 
"Where,"  says  tlie  Chief  Justice,  "  one  devotes  his  property-  to  a  use 
in  which  the  public  have  an  interest,  he,  in  effect,  grants  to  the  public 
an  interest  in  that  use,  and  must  submit  to  be  controlled  by  the  pubhc 
for  the  common  good,  to  the  extent  of  the  interest  he  has  thus  created." 
In  the  judgment  of  the  legislature  the  public  had  an  interest  to  prevent 
race  discrimination  between  citizens,  on  the  part  of  persons  maintaining 
places  of  public  amusement,  and  the  quasi  public  use  to  which  the 
owner  of  such  a  place  devoted  his  property,  gives  the  legislature  a  right 
to  interfere.  If  the  defendant,  instead  of  basing  his  exclusion  of  a 
class  of  citizens  upon  color,  had  made  a  rule  excluding  all  Germans,  or 
all  Irishmen,  or  all  Jcavs,  the  law  as  applied  to  such  a  case  would  have 
seemed  entirel}'  reasonable.  United  States  v.  JSfewconibe  [U.  S.  Dist. 
Ct.],  4  Phila.  519.  But  the  principle  is  the  same,  and  if  the  law  could 
be  sustained  in  the  one  case,  it  may  in  the  other.  The  validity  of  simi- 
lar statutes  in  Mississippi  and  Louisiana  has  been  sustained  by  the 
courts  in  those  States.  Donnell  v.  The  State,  48  Miss.  661  ;  Joseph  v. 
JBidwell,  28  La.  382.  The  statute  does  not  interfere  with  private  en- 
tertainments, or  prevent  persons  not  engaged  in  the  business  of  keeping 
a  place  of  public  amusement,  from  regulating  admission  to  social, 
public,  or  private  entertainments  given  by  them  as  they  may  deem 
best,  nor  does  it  seek  to  compel  social  equality.  It  was,  we  think,  a 
valid  exercise  of  the  police  power  of  the  State  over  a  subject  within  the 
cognizance  of  the  legislature. 

The  judgment  should  be  affirmed. 

All  concur,  except  Peckham  and  Gray,  JJ,,  dissenting;  Ruger, 
C.  J.,  concurring  in  result.  Judgment  affirmed} 

1  And  .so  Ferguson  v.  Gies,  82  Mich.  3.58  (1890),  as  to  restaurants,  where  the  stat- 
ute is  said  to  be  only  declaratory  of  the  common  law,  as  now  understood  in  that  State ; 
Bujilies  V.  Curry,  128  111.  287  (1889).  Compare  Central  R.  R.  Co.  v.  Green,  86  Pa.  St. 
427  (1878);  R.  R.  Co.  v.  Brown,  17  ^Yall.  445  (1873).  — Ed. 


^ 


574  LEIIEW   V.   BRU-MMELL.  [CIIAP.  IV. 


LEHEW  V.  BRUMMELL. 

Supreme  Court  of  Missouri.     1890. 

[103  Mo.  546.] 

E.  31.  Jlanb^r,  for  appellants. 

B.  A.  DeBott,  for  respondents. 

•    '         ,'     Black,  J.    The  five  plaintiffs  in  this  case  reside  in  School  District 

i^     .     Number  4,  in  Griind}'  County,  and  each  has  children  entitled  to  attend 

•^ ' '^  ^  '^"'^''^  the  public  school  maintained  therein  for  the  education  of  white  children. 

jifL  hu.-      In   September,   1887,  when  this  suit  was   commenced,  the  defendant 

;^  '^^/'(/iBarr  was  the  teacher,  and  three  of  the  defendants  were  directors  of  the 

/         ^    '  school  district.     The  defendant  Brummell  is  a  man  of  African  descent, 

4^ifud         j^jjj  jit  ^Ijg  last-mentioned  date  had  four  children,  all  of  whom  resided 

AU/v^  1  >^->vv.  Vi^ith  him  in  said  district  and  were  of  the  ages  entitling  them  to  attend 

\iiM\.\\  ~\tys.  the  public  schools.     These  four  children  were  the  onl}'  colored  children 

/I  '-Jj^  /      of  school  age  in  the  district.     No  separate  school  was  ever  established 

r^  or  maintained  therein  for  the  education  of  colored  children ;  but  there 

V.^  j       was  such  a  separate  school  in  the  town  of  Trenton  in  the  same  county, 

U.^uXrtAfcv'^^jjj^.gg  ^ji^^l  one-half  miles  from  Brummell's  residence.     No  white  child  in 

^  lA)  d(A-  District  Number  4  had  to  go  more  than  two  miles  to  reach  the  school- 

-fj     ^\^.  house.      These  colored   children  were  permitted  to  attend  the  school 

maintained  for  white  children  in  District  Number  4  for  a  short  time. 

On  the  foregoing  facts  a  temporary  injunction  was  awarded  the  plain- 
tiflfs,  restraining  Brummell's  children  from  attending  the  school  so  estab- 
^    i^^j^ll^lished  for  white  children,  which  was  made  perpetual  on  the  final  hearing 
r>     of  the  cause,  and  the  defendants  appealed. 

But  two  questions  are  presented  by  the  briefs  for  our  considei'ation. 


i' . 

Ci><^hJ^  The  first  is,  that  the  laws  of  this   State  concerningJiie  education  of 

It  ^^s\/MJOi.  colored  children  are  in  conflict  with  section  1  of  the  Fourteenth^nend- 

s.  \jcJUct .   ment  of  the  Constitution  of  the  United  States,  and,  therefore,  void. 

XA^^>0-c(aM^      Section  1,  of  article  11,  of  the  Constitution  of  this  State,  makes  it  the 

tiUoitv -vvXTT  fluty  of  the  General  Assembly  to  establish  and  maintain   free  public 

■        ■     f-j  schools  for  the  gratuitous  instruction  of  all  persons  in  this  State  be- 

,  I     tween  the  ages  of  six  and  twenty  years ;  and  section  6  of  the  same 

t  '.•xwa''[^  article  declares  :   "  Separate  free  public  schools  shall  be  established  for 

the  education  of  children  of  African  descent." 
t  u^ai  jifu-di-A  system  of  free  pul)lic  schools  has  been  estal)lislied  by  general  laws 
W  nxvT     throughout  the  State,  and  for  all  the  purposes  of  this  case  it  will  be 
J  .^    J        sufficient  to  notice  the  statutes  concerning  colored  schools.   .   .   . 

3  \  These  statute  laws  simply  carry  out  and  put  in  operation  the  com- 

'th'jt^  mand  of  that  section  of  our  Constitution  before  quoted,  and  the  objec- 

tion now  made  is  levelled  at  the  constitutional  provision,  and  it  is  that 
which  we  are  asked  to  strike  down,  because  of  the  contention  that  it 
violates  section  1  of  the  Fourteenth  Amendment  of  the  Constitution  of 
the  United  States.  .  .  . 


CHAP.  IV.]  LEHEW  V.    BKU^MMELL  575 

We  then  come  to  the  last  clause,  which  is  prohibitoiy  of  State  action. 
It  says,  nor  shall  any  State  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws.  Speaking  of  this  clause  in  its  appli- 
cation to  State  legislation  as  to  colored  persons,  Justice  Strong  said  : 
"  What  is  this  but  declaring  that  the  law  in  tlie  States  shall  be  the 
same  for  the  black  as  for  the  white  ;  that  all  persons,  whether  colored 
or  wliite,  shall  stand  equal  before  the  laws  of  the  States,  and,  in  regard 
to  the  colored  race,  for  whose  protection  the  amendment  was  primarily 
designed,  that  no  discrimination  shall  be  made  against  them  by  law 
because  of  their  color?"  Strauder  x.West  Virginia,  100  U.  S.  303. 
"\Ye  then  come  to  tlie  simple  question  whether  our  Constitution  and  the 
statutes  passed  pursuant  to  it,  requiring  colored  persons  to  attend 
schools  established  and  maintained  at  public  expense  for  the  education 
of  colored  persons  only,  den}-  to  such  persons  "  equal  protection  of  the 
laws." 

It  is  to  be  observed  in  the  first  ])lace  tliat  these  persons  are  not  de- 
nied the  advantages  of  the  public  schools.  The  right  to  attend  such 
schools  and  receive  instruction  thereat  is  guaranteed  to  them.  The 
framers  of  the  Constitution  and  the  people  by  their  votes  in  adopting  it, 
it  is  true,  were  of  the  opinion  that  it  would  be  better  to  establish  and 
maintain  separate  schools  for  colored  children.  The  wisdom  of  the 
provision  is  no  longer  a  matter  of  speculation.  Under  it,  the  colored 
children  of  the  State  have  made  a  rapid  stride  in  the  wa}'  of  education, 
to  the  great  gratification  of  ever}'  riglit-minded  man.  The  schools  for 
white  and  black  persons  are  carried  on  at  a  great  public  expense,  and 
it  has  been  found  expedient  and  necessary  to  divide  them  into  classes. 
That  separate  schools  may  be  established  for  male  and  female  pupils 
cannot  be  doubted.  No  one  would  question  the  right  of  the  legislature 
to  provide  separate  schools  for  neglected  children  who  are  too  far  ad- 
vanced in  years  to  attend  the  primary  department ;  for  such  separate 
schools  would  be  to  the  great  advantage  of  that  class  of  pupils.  So, 
too,  schools  may  be  classed  according  to  the  attainments  of  the  attend- 
ants in  the  branches  taught.  That  schools  may  be  classed  on  these 
and  other  grounds  without  violating  the  clause  of  the  Federal  Constitu- 
tion now  in  question,  must  be  conceded.  But  it  will  be  said  the  classi- 
fication now  in  question  is  one  based  on  color,  and  so  it  is ;  but  the 
color  carries  with  it  natural  race  peculiarities  which  furnish  the  reason 
for  the  classification.  There  are  differences  in  races,  and  ^between 
individuals  of  the  same  race,  not  created  by  human  laws,  some  of 
which  can  never  be  eradicated.  These  differences  create  different 
social  relations  recognizer!  by  all  well-organized  governments.  If  we 
cast  aside  chimerical  theories  and  look  to  practical  results,  it  seems  to 
us  it  must  be  conceded  that  separate  schools  for  colored  children  is  a 
regulation  to  their  great  advantage. 

It  is  true  Brummell's  children  must  go  three  and  one-half  miles  to 
reach  a  colored  school,  while  no  white  child  in  the  district  is  required 
to  go  further  than  two  miles.     The  distance  which  these  children  must 


576  LEIIEW   V.   BRUMMELL.  [CHAP.  IV. 

go  to  reach  a  colorerl  school  is  a  matter  of  inconvenience  to  them, 
but  it  is  an  inconvenience  which  must  arise  in  an}'  school  SAstem. 
The  law  does  not  undertake  to  establish  a  school  within  a  given  dis- 
tance of  any  one,  white  or  black.  Tlie  inequality  in  distances  to  be 
travelled  by  the  children  of  different  families  is  but  an  incident  to 
any  classification,  and  furnishes  no  substantial  ground  of  complaint. 
People  ex  rel.  King  v.  Gallagher^  93  N.  Y.  438-451. 

The  fact  must  be  kept  in  mind,  for  it  lies  at  the  foundation  of  this 
controvers}',  that  the  laws  of  this  State  do  not  exclude  colored  children 
from  the  public  schools.  Such  children  have  all  the  school  advantages 
and  privileges  that  are  afforded  white  children.  The  fact  that  the  two 
races  are  separated  for  the  ijurpose  of  receiving  instruction  dernives 
neither  of  any  rights.  It  is  but  a  reasonable  regulation  of  the  exercise  | 
of  the  right.  As  said  in  the  case  just  cited,  "  Equality  and  not  iden-| 
tity  of  privileges  and  rights  is  what  is  guaranteed  to  the  citizen."  Our' 
conclusion  is  that  the  Constitution  and  laws  of  this  State  providing  for 
separate  schools  for  colored  children  are  not  forbidden  b}-,  or  in  con- 
flict with,  the  Fourteenth  Amendment  of  the  Federal  Constitution  ;  and 
the  courts  of  last  resort  in  several  States  have  reached  the  same  result. 
People  ex  rel.  King  v.  Gallagher^  supra;  State  ex  rel.  Games  v. 
McCann,  21  Oliio  St.  198;  Cory  v.  Carter,  48  Ind.  328;  Ward  v. 
Flood,  48  Cal.  36. 

A  like  result  was  reached  in  ]\Iassachusetts  under  a  constitutional 
provision  similar  to  the  Fourteenth  Amendment  as  to  the  question  in 
hand.  Poherts  v.  The  City  o/Posto7i,  5  Gushing,  198.  We  are,  also,  of 
the  opinion  that  our  conclusion  is  in  accord  with  the  cases  cited  from 
the  Supreme  Court  of  the  United  States,  the  final  arbiter  of  all  such 
questions.^ 

[The  second  point,  turning  on  the  want  of  proper  parties,  is  omitted.] 

1  And  so  Chrisman  v.  Brookhaven,  70  IMiss.  477  (1892).  In  this  case  the  court 
(Campbell,  C.  J.)  remarks  that,  "  The  Constitution  of  1890  embodies  by  express  pro- 
vision, in  s.  207,  the  rule  which  has  alwa^ys  prevailed  in  this  State,  tliat  '  separate  scliools 
shall  be  maintained  for  children  of  the  white  and  colored  races.' "  The  same  doctrine 
is  held  as  regards  legislation  requiring  railway  companies  to  "  provide  equal  but  sepa- 
rate  accommodations  for  the  white  and  colored  races ;  "  h\  Ex  parte  Plessy,  11  So.  Kep. 
948  (La.  Dec.  1892).     Compare  Loiusv.,  ^x.  By.  Co.  v.  Miss.,  133  U.  S.  587. 

In  Robcrtsy.  The  City  of  Boston,  5  Cush.  198  (18,50),  before  the  Fourteenth  Amend- 
ment, a  similar  question  was  elaborately  argued  before  the  Supreme  Court  of  JNIas-sacliu- 
setts  by  Charles  Sumner  (3  Pierce's  Life  of  Sumner,  40,  41).  In  an  often-cited  o])inion 
the  court  (Shaw,  C.  J.)  said:  "The  plaintiff,  a  colored  cliild  of  five  years  of  age,  has 
commenced  this  action,  by  her  father  and  next  friend,  against  the  city  of  Boston,  upon 
the  statute  of  1845,  c,  214,  which  provides,  that  any  child  unlawfully  excluded  from 
public-school  instruction,  in  this  Commonwealth,  shall  recover  damages  therefor,  in  an 
action  against  the  city  or  town  by  which  such  public-school  instruction  is  supported. 
The  question  therefore  is,  whether,  upon  the  facts  agreed,  the  plaintiff  has  been  un- 
lawfully excluded  from  such  instruction. 

"  By  the  agreed  statement  of  facts,  it  appears,  that  the  defendants  support  a  class  of 
schools  called  ])rimary  schools,  to  the  number  of  about  one  hundred  and  sixty,  designed 
for  the  instruction  of  children  of  both  sexes,  who  are  between  tlie  ages  of  four  and 


CHAP.  IV.]  LEHEW  V.    BRUMMELL.  577 

seven  years.  Two  of  these  schools  are  appropriated  by  the  primary  school  committee, 
having  charge  of  that  class  of  schools,  to  the  exclusive  instruction  of  colored  children, 
and  the  residue  to  the  exclusive  instruction  of  white  children. 

"  The  plaintiff,  by  her  father,  took  proper  measures  to  obtain  admission  into  one  of 
these  schools  a])propriated  to  white  children,  but  pursuant  to  the  regulations  of  the 
committee,  and  in  conformity  therewith,  she  was  not  admitted.  Either  of  the  schools 
appropriated  to  colored  children  was  open  to  her ;  the  nearest  of  which  was  about  a 
fifth  of  a  mile  or  seventy  rods  more  distant  from  her  father's  house  than  the  nearest 
primary  school.  It  further  appears,  by  the  facts  agreed,  that  the  committee  having 
charge  of  that  class  of  schools  had,  a  short  time  previously  to  the  plaintiff's  application, 
adopted  a  resolution,  upon  a  report  of  a  committee,  that  in  the  opinion  of  that  board, 
the  continuance  of  the  separate  schools  for  colored  children,  and  the  regular  attendance 
of  all  such  children  upon  the  schools,  is  not  only  legal  and  just,  but  is  best  adapted  to 
promote  the  instruction  of  that  class  of  the  population.  .  .  . 

"  The  plaintiff  had  access  to  a  school,  set  apart  for  colored  children,  as  well  con- 
ducted in  all  respects,  and  as  well  fitted,  in  point  of  capacity  and  qualification  of  the 
instructors,  to  advance  the  education  of  children  under  seven  years  old,  as  the  other 
primary  schools ;  the  objection  is,  that  the  schools  thus  open  to  the  plaintiff  are  exclu- 
sively appropriated  to  colored  children,  and  are  at  a  greater  distance  from  her  home. 
Under  these  circumstances,  has  the  plaintiff  been  unlawfully  excluded  from  public- 
school  instruction  ?  Upon  the  be-st  consideration  we  have  been  able  to  give  the  sub 
ject,  the  court  are  all  of  opinion  that  she  has  not. 

"  It  will  be  considered  that  this  is  a  question  of  power,  or  of  the  legal  authority  of 
the  committee  intrusted  by  the  city  with  tliis  department  of  public  instruction  ;  because, 
if  they  have  the  legal  authority,  the  expediency  of  exercising  it  in  any  particular  way 
is  exclusively  with  them. 

"The  great  principle,  advanced  by  the  learned  and  eloquent  advocate  of  the  plain- 
tiff, is,  that  by  the  Constitution  and  laws  of  Massachusetts,  all  persons  without  distinc- 
tion of  age  or  sex,  birth  or  color,  origin  or  condition,  are  equal  before  the  law.  This, 
as  a  broad  general  principle,  such  as  ought  to  appear  in  a  declaration  of  rights,  is  per- 
fectly sound ;  it  is  not  only  expressed  in  terms,  but  pervades  and  animates  the  whole 
spirit  of  our  constitution  of  free  government.  But,  when  this  great  principle  comes  to 
be  applied  to  the  actual  and  various  conditions  of  persons  in  society,  it  will  not  warran t 
the  assertion  that  men  and  women  are  legally  clothed  with  the  same  civil  and  political 
powers,  and  that  children  and  adults  are  legally  to  have  the  same  functions  and  be 
subject  to  the  same  treatment ;  but  only  that  the  rights^fjin,  as  they  are  settled  and 
regulated  by  law,  are  equally  entitled  to  the  paternal  cqnsidera,tion  and  jjrotection  of 
the  law,  for  their  maintenance  and  security.  What  those  rights  are,  to  which  individ- 
uals, in  the  infinite  variety  of  circumstances  by  which  they  are  surrounded  in  society, 
are  entitled,  must  depend  on  laws  adapted  to  their  respective  relations  and  conditions. 

"  Conceding,  therefore,  in  the  fullest  manner,  that  colored  persons,  the  descendants 
of  Africans,  are  entitled  by  law,  in  this  Commonwealth,  to  equal  rights,  constitutional 
and  political,  civil  and  social,  the  question  then  arises,  whether  the  regulation  in  ques- 
tion, which  provides  separate  schools  for  colored  children,  is  a  violation  of  any  of  these 
rights. 

"Legal  rights  must,  after  all,  depend  upon  the  provisions  of  law;  certainly  all  those 
rights  of  individuals  which  can  be  asserted  and  maintained  in  any  judicial  tribunal. 
The  proper  province  of  a  declaration  of  rights  and  constitution  of  government,  after 
directing  its  form,  regulating  its  organization  and  the  distribution  of  its  powers,  is  to 
declare  great  principles  and  fundamental  truths,  to  influence  and  direct  the  judgment 
and  conscience  of  legislators  in  mailing  laws,  rather  than  to  limit  and  control  them,  by 
directing  what  precise  laws  they  shall  make.  The  provision,  that  it  shall  be  tlie  duty 
of  legislatures  and  magistrates  to  cherish  the  interests  of  literature  and  the  sciences, 
especially  the  University  at  Cambridge,  public  schools,  and  grammar  schools,  in  the 
towns,  is  precisely  of  this  character.  Had  the  legislature  failed  to  comply  with  this 
injunction,  and  neglected  to  provide  pul)lic  schools  in  the  towns,  or  should  they  so  far 
fail  in  their  duty  as  to  repeal  all  laws  on  the  subject,  and  leave  all  education  to  depend 
VOL.  I.  —  37 


578  IN   RE   LOOK   TIN   SING.  [CHAP.  IV. 


In  re  look  tin   SING. 
Circuit  Court  of  the  United  States,  California.     1884. 

[10  Sawijer,  353.] 

Before  Field,  Circuit  Justice,  Sawyer,  Circuit  Judge,  and  Sabin, 
District  Judge.^ 

T.  J),  liiordan  and  William  M.  Steioart^  for  the  petitioner ;  S.  G. 
Ililhorn,  United  States  Attorney,  Carroll  Cook,  Assistant  United 
States  Attorney-,  and  John  N.  Pomeroy,  for  the  United  States. 

B}-  tlie  Court,  Field,  Circuit  Justice.     The  petitioner  belongs  to  the 

on  private  means,  strong  and  explicit  as  the  direction  of  the  Constitution  is,  it  would 
afford  no  remedy  or  redress  to  the  thousands  of  the  rising  generation,  who  now  depend 
on  these  schools  to  afford  them  a  most  valuable  education,  and  an  introduction  to  use- 
ful life. 

"  We  must  then  resort  to  the  law,  to  ascertain  what  are  the  rights  of  individuals,  in 
regard  to  the  schools.     By  the  Rev.  Sts.  c.  23,  the  general  system  is  provided  for.  .  .  . 

"  In  the  absence  of  special  legislation  on  this  subject,  the  law  has  vested  the  power 
in  the  committee  to  regulate  the  system  of  distribution  and  classification;  and  when 
this  power  is  reasonably  exercised,  without  being  abused  or  perverted  by  colorable 
pretences,  the  decision  of  the  committee  must  be  deemed  conclusive.  The  committee, 
apparently  upon  great  deliberation,  have  come  to  the  conclusion,  that  the  good  of  both 
classes  of  schools  will  be  best  promoted,  by  maintaining  the  separate  primary  schools 
for  colored  and  for  white  children,  and  Ave  can  perceive  no  ground  to  doubt,  tliat  this 
is  the  honest  result  of  their  experience  and  judgment. 

"  It  is  urged,  that  this  maintenance  of  separate  schools  tends  to  deepen  and  perpetu- 
ate the  odious  distinction  of  caste,  founded  in  a  deep-rooted  prejudice  in  public  opinion. 
This  prejudice,  if  it  exists,  is  not  created  by  law,  and  probably  cannot  l)e  changed  by 
law.  Whether  this  distinction^  and  prejudice,  existing  in  the  opinion  and  feelings  of 
the  community,  would  not  be  as  effectually  fostered  by  compelling  colored  and  white 
children  to  associate  together  in  the  same  schools,  may  well  be  doubted  ;  at  all  events, 
it  is  a  fair  and  proper  question  for  the  committee  to  consider  and  decide  upon,  having 
in  view  the  best  interests  of  both  classes  of  children  placed  under  their  superintendence, 
and  we  cannot  say,  that  their  decision  upon  it  is  not  founded  on  just  grounds  of  reason 
and  experience,  and  in  the  results  of  a  discriminating  and  honest  judgment. 

"The  increased  distance,  to  which  the  plaintiff  was  obliged  to  go  to  school  from  her 
father's  house  is  not  such,  in  our  opinion,  as  to  render  the  regulation  in  question  imrea- 
sonable,  still  less  illegal. 

"  On  the  whole  the  court  are  of  opinion,  that  upon  the  facts  stated,  the  action  cannot 
be  maintained."  Plaintiff  nonsuit. 

Compare  West  Chester,  ^-c.  R.  R.  Co.  v.  ^files,  55  Pa.  St.  209  (1867).  In  Board  of  Edu- 
cation V.  Tlnnon,  26  Kans.  1  (1881),  it  was  held  tliat  in  the  absence  of  clear  legislative 
authoritv,  a  board  of  education  could  not  establish  separate  schools  for  white  and  col- 
ored persons.  For  the  purpose  of  the  opinion  it  was  assumed,  although  doubt  was  inti- 
mated, that  the  legislature  might  authorize  such  a  separate  system.  Bkewer,  J., 
dissented. 

With  this  case  are  People  v.  The  Board  of  Education,  101  HI.  308  (1882).  Compare 
Coger  v.  iV.  W.  Packet  Co.,  37  Iowa,  143  (1873) ;  The  Sue,  22  Fed.  Rep.  843  (1885) ; 
Logwood  \.  Memphis,  S^^c.  R.  Co.,  23  Fed.  Rep.  318  (1885);  The  Civil  Rights  Bill, 
Hughes,  541   (1875).— Ed. 

I  Judge  Hoffman  did  not  sit  on  the  hearing  of  this  case,  but  he  was  on  the  Bench 
when  the  opinion  was  delivered,  and  concurred  in  the  views  expressed. 


CHAP.  IV.]  IN    EE   LOOK   TIN   SING.  579 

Chinese  race,  but  he  was  born  in  Mendocino,  in  the  State  of  CaUfornia, 
in  1870.  In  1870  he  went  to  China,  and  returned  to  the  port  of  ISun 
Francisco  during  the  present  month  (September,  1884),  and  now  seelcs 
to  land,  claiming  the  right  to  do  so  as  a  natural-born  citizen  of  the  United 
States.  It  is  admitted  by  an  agreed  statement  of  facts  that  his  parents 
are  now  residing  in  Mendocino,  in  California,  and  have  resided  there  for 
the  last  twenty  years  ;  that  they  are  of  the  Chinese  race,  and  have  al-  ^ 

wa3's  been  subjects  of  the  Emperor  of  China ;  that  his  father  sent  the 
petitioner  to  China,  but  with  the  intention  that  he  should  return  to  this 
country  ;  that  the  father  is  a  merchant  at  Mendocino,  and  is  not  here  in 
any  diplomatic  or  other  official  capacity  under  the  Emperor  of  China. 
The  petitioner  is  without  any  certificate,  under  the  Act  of  1882,  or  of 
1884,  and  the  District  Attorney  of  the  United  States,  intervening  for 
the  government,  ol)jects  to  his  landing  for  the  want  of  such  certificate. 

The  first  section  of  the  Fourteenth  Amendment  to  the  Constitution 
declares  that  "  all  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside."     This  language  would  seem  to  be 
sufficiently  broad  to  cover  the  case  of  the  petitioner.     He  is  a  person 
born  in  the  United  States.     Any  doubt  on  the  subject,  if  there  can  be 
any,  must  arise  out  of  the  words  "  subject  to  the  jurisdiction  thereof"  c^^yJly^oj^  "tX: 
Thev  alone  are  subject  to  the  jurisdiction  of  the  United  States  who  are  A^^^^j^^^t^ 
within  their  dominions  and  under  the  protection  of  their  laws,  and  with  1^,    a         0 
the  consequent  obligation  to  obey  them,  when  obedience  can  be  ren-'^k  ^   ' 
dered  ;  and  only  those  thus  subject  by  their  birth  or  naturalization  are  xAawa^A   cfc 
within  the  terms  of  the  amendment.     The  jurisdiction  over Jliese Jatter  rU^wuXA^vvi 
must  at  the  time  be  both  actual  and  exclusive.     The  words  mentioned  aaaa  ^(ja  \va^) 
except  from  citizenship  children  born  in  the  United  States  of  persons  x/^^iyy^  (A  Cic<t  ^ 
engaged  in  the  diplomatic  service  of  foreign  governments,  such  as  min-  .^w^  ^GjOU. 
isters  and  ambassadors,  whose  residence,  by  a  fiction  of  public  law,  is     ^Vcm  VL>^^ 
regarded  as  part  of  their  own  country.  ^This  extra-territoriality  of  their   c^  ,^A^x\r^A 
residence  secures  to  their  children  born  here  all  the  rights  and  privileges  ' 

which  would  inure  to  them  had  they  been  born  in  the  country  of  their 
parents.  Persons  born  on  a  public  vessel  of  a  foreign  country,  whilst 
within  the  waters  of  the  United  States,  and  consequently  within  the i r" 
territorial  jurisdiction,  are  also  excepted.  \  They  are  considered  as  born 
in  the  country  to  which  the  vessel  belongs.  In  the  sense  of  public  law, 
they  are  not  born  within  the  jurisdiction  of  the  United  States. 

The  language  used  has  also  a  more  extended  purpose.    It  was  designed  (^)v  (jJifeuvv 
to  except  from  citizenship  persons  who,  though  born  or  naturalized  in    ,n  q 

the  United  States,  have  renounced  their  allegiance  to  our  government,    l^^^*^'^ 
and  thus  dissolved  their  political  connection  with  the  country.     The  ^     ^^     > 
United  States  recognized  the  right  of  every  one  to  expatriate  himself    i^<^^"'1^^^ 
and  choose  another  country.     This  right  would  seem  to  follow  from  the  ^^'l^v/  l(- 
greater  right  proclaimed  to  the  world  in  the  memorable  document  in 
which  the  American  colonies  declared  their  independence  and  separation 
from  the  British  Crown,  as  belonging  to  every  human  being  —  God-given 


580  IN   RE   LOOK   TIN   SING.  [CIIAP.  IV. 

^JC.  ouv^ltq-  and  inalienable  —  the  right  to  pursue  his  own  happiness.  The  English 
,wva^^  ^  doctrine  of  perpetual  and  unchangeable  allogiancc  toJLhe  "lovernment  of 
'oj^A^  o^-^  one's  birth,  attending  the  subject  wherever  he  goes,  has  never  taken  root 
■  p  "S  in  this  country,  although  there  are  judicial  dicta  that  a  citizen  cannot 

I  ^         renounce  his  allegiance  to  the  United  States  without  the  permission  of 

-^  the  government,  under  regulations  prescribed  by  law  ;  and  this  would 

iu  CivwiX-  seem  to  have  been  the  opinion  of  Chancellor  Kent  when  he  published  his 
^^  Q{^(yfX-  Commentaries.  But  a  different  doctrine  prevails  now.  The  naturaliza- 
^  tion  laws  have  ahvays  jjroceeded  upon  the  theory  that  any  one  can 

change  his  home  and  allegiance  without  the  consent  of  his  government. 
^  And  we  adopt  as  citizens  those  belonging  to  our  race,  who,  coming  from 
other  lands,  manifest  attachment  to  our  institutions  and  desire  to  be  in- 
corporated with  us.  So  profoundly  convinced  are  we  of  the  right  of 
these  immigrants  from  other  countries  to  change  their  residence  an d 
allegiance,  that  as  soon  as  they  are  naturalized  they  are  deemed  entitled , 
with  the  native-born,  to  all  the  protection  which  the  government  can  ex- 
tend to  them  wherever  they  may  be,  at  home  or  abroad.  And  the  same 
right  which  we  accord  to  them  to  become  citizens,  here  is  accorded  to 
theiu  as  well  as  to  the  native-born,  to  tran&feji!g4heir  allegiance  from  our 
government  to  that  of  other  States. 

In  an  opinion  of  Attorne3"-General  Black,  in  the  case  of  a  native 

Bavarian,  who  came  to  this  country,  and,  after  being  naturalized,  re- 

7   /  '//       turned  to  Bavaiia,  and  desired  to  resume  his  status  as  a  Bavarian,  this 

J  doctrine  is  maintained.     "  ThereJs."  he  says.  "■  no  statute  or  other  law 

(rv^  /^v1^w^     of  Die  United  States  which  prevents  either  a  native  or  naturalized  citi- 

n/iAA.Ajt -^<t  zen  from  severing  his  political  connection  with  this  government,  if  he 

cKrccvjejt     sees  proper  to  do  so  in  time  of  peace,  and  for  a  purpose  not  directly 

^cA.'vxv'vt^  injurious  to  the  interests  of  the  country.     There  is  no  mode  of  renunci- 

^i  YLCc-tAA/^T    ation  prescribed.     In  my  opinion,  if  he  emigrates,  carries  his  family  and 

^dX-M  wv\l   effects  with  him,  manifests  a  plain  intention  not  to  return,  takes  up  his 

^jt^^  of^     permanent  residence  abroad,  and  assumes  the  obligation  of  a  subject  to 

n;      n    frM.r>;rrn    rr/~.-iTQvviTYionf    tl-iio   Tirnnlrl    imidv  n    rlissnlnf.inn  nf   his    nrovinns 


-Vitt/ 


a  foreign  government,  this  would  imply  a  dissolution  of  his  previous 
^'^"^'^^^'^•elations  to  the  United  States,  and  I  do  not  think  we  could,  or  would, 
afterward  claim  from  him  any  of  the  duties  of  a  citizen."     9  Opin. 
Atty.-Gens.  62. 

The  doctrine  thus  stated  has  long  been  received  in  the  United  States 
as  a  settled  rule  of  public  law  ;  and  in.  the  treaty  of  18G8  between  China 
and  this  country,  the  right  of  man  to  change  his  home  and  allegiance  is 
recognized  as  "inherent  and  inalienable."  16  Stats.,  p.  740,  art.  5. 
And  in  the  recital  of  an  Act  of  Congress  passed  nearly  at  the  same  time 
with  the  signing  of  the  treaty,  this  right  is  assumed  to  be  "a  natural 
and  inherent  right  of  all  people,  indispensable  to  the  enjoyment  of  the 
rights  of  life,  liberty,  and  the  ])ursuit  of  happiness ; "  and  in  the  body 
of  the  Act,  "  any  declaration,  instruction,  opinion,  order,  or  decision  ot 
any  officers  of  this  government  which  denies,  restricts,  impairs,  or 
questions  the  right  of  expatriation,"  is  declared  to  be  "inconsistent 
with  the  fundamental  principles"  of  our  government.     13  Stats.  223; 


CHAP.  IV.]  IN   RE  LOOK  TIN   SING.  581 

R.  S.,  sect.  1999.  \  So,  therefore,  if  persons  born  or  naturalized  in  the 
United  States  have  removed  from  tlie  countr}-  and  renounced,  in  any  of 
the  ordinary  modes  of  renunciation,  their  citizenship,  the}-  thenceforth 
cease  to  be  subject  to  the  jurisdiction  of  the  United  States.  ^ 

"With  this  explanation  of  the  meaning  of  the  words  in  the  Fourteenth 
Amendment,  '•'•  subject  to  the  jurisdiction  thereof,"  it  is  evident  that 
they  do  not  exclude  the  petitioner  from  being  a  citizen.  He  is  not  within 
an}-  of  the  classes  of  persons  excepted  from  citizenship  ;  and  the  juris- 
diction of  the  United  States  over  him  at  the  time  of  his  birth  was  ex- 
clusive of  that  of  an}-  other  country. 

The  clause  as  to  citizenship  was  inserted  in  the  amendment  not  merely 
as  an  authoritative  declaration  of  the  genei-ally  recognized  law  of  the 
country  so  far  as  tlie  white  race  is  concerned,  but  also  to  overrule ^he 
doctrine  of  the  Dred  Scott  Case,  affirming  that  persons  of  the  African  ;  L/  ^l 
race  brought  over  to  this  country  and  sold  as  slaves,  and  their  descend- 
ants,  were  not  citizens  of  the  United  States  nor  capable  of  becoming 
such.  19  How.  393.  The  clause  changed  the  entire  status  of  these 
people.  It  lifted  them  from  their  condition  of  mere  freedmen  and  con- 
ferred upon  them,  equally  witli  all  other  native-born,  the  rights  of  citizen- 
ship. (When  it  was  adopted,  the  naturalization  laws  of  the  United 
States  excluded  colored  pei'sons  from  becoming  citizens,  and  the  freed- 
men and  their  descendants,  not  being  aliens,  were  without  the  purview 
of  those  laws.  \So  the  inability  of  persons  to  become  citizens  under 
those  laws  in  no  respect  impairs  the  effect  of  their  birth,  or  of  the  birth 
of  their  children,  upon  the  status  of  either  as  citizens  under  the  amend- 
ment in  question. 

Independently  of  the  constitutional  provision,  it  has  always  been  the 
doctrine  of  this  country,  except  as  applied  to  Africans  brought  here  and 
sold  as  slaves,  and  their  descendants,  that  birth  within  the  dominions 
and  jurisdiction  of  the  United  States  of  itself  creates  citizenship.  This 
subject  was  elaborately  considered  by  Assistant  Vice-Chancellor  Sand- 
ford  in  Lynch  v.  Clarke,  found  in  the  first  volume  of  his  reports.  1 
Sandf.  583.  In  that  case  one  Julia  Lynch,  born  in  New  York,  in  181^, 
of  alien  parents,  during  their  temporary  sojourn  in  that  city,  returned 
with  them  the  same  year  to  their  native  country,  and  always  resided 
there  afterwards.  It  was  held  that  she  was  a  citizen  of  the  United 
States.  (^  oSzaMW 

After  an  exhaustive  examination  of  the  law,  the  Vice-Chancellor  said^^    a     ~  >> 
that  he  entertained  no  doubt  that  every  person  born  within  the  domin-     /i-  /    n    (f 
ions  and  allegiance  of  the  United  States,  whatever  the  situation  of  his'^'^'M   'W  ^^ 
parents,  was  a  natural-born  citizen  ;  and  added,  that  this  was  the  gen-  ■\\jil d  (k,%.  f  aX 
eral  understanding  of  the  legal  profession,  and  the  universal  impression  /X/? 

of  the  public  mind.     In  illustration  of  this  general  understanding,  lie  — 

mentions  the  fact,  that  when  at  an  election  an  inquiry  is  made  whether 
the  person  offering  to  vote  is  a  citizen  or  an  alien,  if  he  answers  that  lie 
is  a  native  of  this  country  the  answer  is  received  as  conclusive  that  he 
is  a  citizen ;  that  no  one  inquires  further ;    no  one  asks  whether  his 


582  IN   RE  LOOK   TIN   SING.  [CHA.P.  IV. 

parents  were  citizens  or  foreigners ;  it  is  enough  that  he  was  born  here 
whatever  was  the  status  of  his  parents.  He  sliows  also  that  legislative 
expositions  on  the  subject  speak  but  one  language,  and  he  cites  to  that 
effect  not  only  the  laws  of  the  United  States,  but  the  statutes  of  a  great 
number  of  the  States,  and  establishes  conclusive!}-  that  there  is  on  this 
subject  a  concurrence  of  legislative  declaration  with  judicial  opinion, 
and  that  both  accord  with  the  general  understanding  of  the  profession 
and  of  the  public.^ 

AVhether  it  be  possible  for  an  alien,  who  could  be  naturalized  under 
our  laws,  to  renounce  for  his  children,  whilst  under  the  age  of  niajorily, 
the  right  of  citizenship,  which  by  those  laws  he  could  acquire  for  them, 
it  is  unnecessar}'  to  consider,  as  no  such  question  is  presented  here. 
Nor  is  the  further  question  before  us  whether,  if  he  cannot  become  a 
citizen,  he  can,  by  his  act,  release  any  right  conferred  upon  them  b}-  the 
Constitution. 

As  to  the  position  of  the  District  Attorney  that  the  Restriction  Act 
prevents  the  re-entry  of  the  petitioner  into  the  United  States,  even  if  he 
be  a  citizen,  only  a  word  is  necessar}*.  The  petitioner  is  the  son  of  a 
merchant,  and  not  a  laborer  within  the  meaning  of  the  Act.     Being  a 


citizen,  the  law  could  not  intend  that  he  should  ever  look  to  the  govern- 
ment of  a  foreign  countr}^  for  permission  to  return  to  the  United  States, 
and  no  citizen  can  be  excluded  from  this  countr}-  except  in  punishment 
for  crime.  Exclusion  for  any  other  cause  is  unknown  to  our  laws  and 
beyond  the  power  of  Congress.  The  petitioner  must  be  allowed  to 
land,  and  it  is  so  ordered.'^ 

1  In  1855  Congress  passed  the  following  Act,  securing  citizenship  to  children  of 
citizens  of  the  United  States  born  without  their  limits :  — 

Chaptkr  LXXI.  —  An  Act  to  secure  the  Right  of  Citizenship  to  Children  of  Citizens 
of  the  United  States  born  out  of  the  Limits  thereof. 

Be  it  enacted  by  the  Senate  and  House  of  Kepresentatives  of  the  United  States  of 
America  in  Congress  assembled,  that  persons  heretofore  born,  or  hereafter  to  be  born, 
out  of  the  limits  and  jurisdiction  of  the  United  States,  whose  fathers  were,  or  shall  be 
at  the  time  of  their  birth,  citizens  of  the  United  States,  shall  be  deemed  and  considered, 
and  are  hereby  declared  to  be,  citizens  of  the  United  States;  provided,  however,  that 
the  rights  of  citizenship  shall  not  descend  to  persons  whose  fathers  never  resided  in  the 
United  States. 

Sec.  2.  And  be  it  further  enacted,  that  anv  woman  who  might  lawfully  be  natural- 
ized  under  the  existing  laws,  married,  or  who  shall  be  married,  to  a  citizen  of  the  UuTted 
States,  shall  be  deemed  and  taken  to  be  a  citizen. 

Approved  February  10,  1855. 

The  provisions  of  this  statute  are  re-enacted  in  the  Revised  Statutes  in  sections  1993 
and  1994. 

•^  Compare  McKay  v.  Campbell,  2  Sawyer,  U.  S.  C.  C.  Oregon,  118  (1871). 

As  to  the  power  of  the  political  departments  of  the  government  to  keep  out  aliens, 
and  to  remove  them,  see  Chae  Chan  Ping  v.  U.  S.,  130  U.  S.  581  (1889);  Nishimura 
Ekiu  V.  U.  S.,  142  U.  S.  651  (1892) ;  and'  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  699,  s.  c. 
ante,  p.  374.  —  Ed. 


CHAP.  IV.]  WORCESTER  V.   GEORGIA.  583 


WORCESTER  v.  THE   STATE  OF   GEORGIA. 
Supreme  Court  of  the  United  States.     1832. 

[6  Pet.  515.]  1 

Error  to  the  Superior  Court  for  the  county  of  Gwuinett  in  the  State 
of  Georgia.  The  plaintiff  in  error,  being  a  missionary  residing  among 
the  Cherokee  Indians  in  Georgia  b}'  permission  of  the  United  States, 
was  indicted  under  a  statute  of  Georgia  forbidding  such  residence  witli- 
out  a  Ucense  from  the  autliorities  of  the  State,  and  was  convicted  and 
sentenced  to  imprisonment. 

Sergeant  and  Wirt,  with  whom  also  was  Elisha  W.  Chester. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 

The  treaties  and  laws  of  the  United  States  contemplate  the  Indian 
territory'  as  completely  separated  from  that  of  the  States  ;  and  provide 
that  all  intercourse  with  them  shall  be  carried  on  exclusively  by  the 
government  of  the  Union. 

Is  this  the  rightful  exercise  of  power,  or  is  it  usurpation  ? 

While  these  States  were  colonies,  this  power,  in  its  utmost  extent, 
was  admitted  to  reside  in  the  Crown.  When  our  Revolutionary  struggle 
commenced,  Congress  was  composed  of  an  assemblage  of  deputies  act- 
ing under  specific  powers  granted  by  the  legislatures,  or  conventions 
of  the  several  colonies.  It  was  a  great  popular  movement,  not  per- 
fectly' organized  ;  nor  were  the  respective  powers  of  those  wlio  were 
intrusted  with  the  management  of  aflfairs  accurately  defined.  The 
necessities  of  our  situation  produced  a  general  conviction  that  those 
measures  which  concerned  all,  must  be  transacted  by  a  body  in  which 
the  representatives  of  all  were  assembled,  and  which  could  command 
the  confidence  of  all :  Congress,  therefore,  was  considered  as  invested 
with  all  the  powers  of  war  and  peace,  and  Congress  dissolved  our  con- 
nection with  the  mother  country',  and  declared  these  United  Colonies  to 
be  independent  States.  Without  any  written  definition  of  powers,  they 
employed  diplomatic  agents  to  represent  the  United  States  at  the  sev- 
eral courts  of  Europe  ;  offered  to  negotiate  treaties  with  them,  and  did 
actually  negotiate  treaties  with  France.  From  the  same  necessity, 
and  on  the  same  principles,  Congress  assumed  the  management  of 
Indian  affairs ;  first  in  the  name  of  these  United  Colonies  ;  and,  after- 
wards, in  the  name  of  the  United  States.  Early  attempts  were  made 
at  negotiation,  and  to  regulate  trade  with  them.  These  not  proving 
successful,  war  was  carried  on  under  the  direction,  and  with  the  forces 
of  the  United  States,  and  the  efforts  to  make  peace,  b}'  treaty,  were 
earnest  and  incessant.  The  confederation  found  Congress  in  the  exer- 
cise of  the  same  powers  of  peace  and  war,  in  our  relations  with  Indian 
nations,  as  with  those  of  Europe. 

1  The  statement  of  facts  is  shortened.  — Ed. 


oS4:  WORCESTER  V.   GEORGIA.  [CHAP.  IV. 

Such  was  the  state  of  thinas  when  the  confederation  was  adopted. 
That  uititrimiL'ut  siuTcndered  the  powers  of  peace  and  war  to  Con- 
gress, and  prohibited  them  to  the  States,  res[)ectively,  unless  a  State  be 
actually  invaded,  "  or  «liall  have  received  certain  advice  of  a  resolution 
being  formed  by  some  nation  of  Indians  to  invade  such  State,  and  the 
danger  is  so  imminent  as  not  to  admit  of  delay  till  the  United  States  in 
Congress  assembled  can  be  consulted."  This  instrument  also  gave  the 
United  States  in  Congress  assembled  the  sole  and  exclusive  right  of 
"regulating  the  trade  and  managing  all  the  affairs  with  the  Indians, 
not  members  of  any  of  the  States  :  provided,  that  the  legislative  power 
of  any  State  within  its  own  limits  be  not  infringed  or  violated." 

The  ambiguous  phrases  which  follow  the  grant  of  power  to  the  United 
States  were  so  construed  by  the  States  of  North  Carolina  and  Georgia 
as  to  annul  the  power  itself.  The  discontents  and  confusion  resulting 
from  these  conflicting  claims,  produced  representations  to  Congress, 
which  were  referred  to  a  committee,  who  made  their  report  in  1787. 
The  report  does  not  assent  to  the  construction  of  the  two  States,  but 
recommends  an  accommodation,  by  liberal  cessions  of  territory,  or  b}' 
an  admission,  on  their  part,  of  the  powers  claimed  b^-  Congress.  The 
correct  exposition  of  this  article  is  rendered  unnecessary  by  the  adop- 
tion of  our  existing  Constitution.  That  instrument  confers  on  Congress 
the  powers  of  war  and  peace  ;  of  making  treaties,  and  of  regulating 
commerce  with  foreign  nations,  and  among  the  several  States,  and  with 
the  Indian  tribes.  These  powers  comprehend  all  that  is  required  for 
the  regulation  of  our  intercourse  with  the  Indians.  They  are  not  limited 
by  any  restrictions  on  their  free  actions.  The  shackles  imposed  on  this 
power,  in  the  confederation,  are  discarded. 

The  Indian  nations  had  always  been  considered  as  distinct,  independ- 
ent political  communities,  retaining  their  original  natural  rights,  as  the 
undisputed  possessors  of  the  soil,  from  time  immemorial,  with  the  single 
exception  of  that  imposed  by  irresistible  power,  which  excluded  them 
from  intercourse  with  any  other  European  potentate  than  the  first  dis- 
coverer of  the  coast  of  the  particular  region  claimed  :  and  this  was  a 
restriction  which  those  European  potentates  imposed  on  themselves,  as 
well  as  on  the  Indians.  The  very  term  "  nation,"  so  generally  applied 
to  them,  means  "  a  people  distinct  from  others."  The  Constitution,  by 
declaring  treaties  already  made,  as  well  as  those  to  be  made,  to  be  the 
supreme  law  of  the  land,  has  adopted  and  sanctioned  the  previous  trea- 
ties with  the  Indian  nations,  and  consequently  admits  their  rank  amorig 
those  powers  who  are  capable  of  making  treaties.  The  words  "  treaty  " 
and  "  nation  "  are  words  of  our  own  language,  selected  in  our  diplomatic 
and  legislative  proceedings,  by  ourselves,  having  each  a  definite  and 
well-understood  meaning.  We  have  applied  them  to  Indians,  as  we 
have  applied  them  to  the  other  nations  of  the  earth.  They  are  applied 
to  all  in  the  same  sense. 

Georgia,  herself,  has  furnished  conclusive  evidence  that  her  former 
opinions  on  this  subject  concurred  with  those  entertained  by  her  sister 


CHAP.  IV.]  WOKCESTEK   V.   GEOKGIA.  585 

States,  and  by  the  government  of  the  United  States.  Various  Aets  of 
her  LegisUitiu'c  have  been  cited  in  the  argument,  inchiding  tlie  contract 
of  cession  made  in  the  year  1802,  all  tending  to  prove  her  acquiescence 
in  the  universal  conviction  that  the  Indian  nations  possessed  a  full  right 
to  the  lands  they  occupied,  until  that  riglit  should  be  extinguished  by 
the  United  States,  with  their  consent :  that  their  territor}'  was  separated 
from  that  of  any  State  within  whose  chartered  limits  they  might  reside, 
by  a  boundary  line,  established  by  treaties  :  that,  within  their  boundary, 
the}'  possessed  rights  with  which  no  State  could  interfere :  and  that 
the  whole  power  of  regulating  the  intercourse  with  them,  was  vested  in 
the  United  States.  A  review  of  these  Acts,  on  the  part  of  Georgia, 
would  occup3'  too  much  time,  and  is  the  less  necessary,  because  they 
have  been  accurately'  detailed  in  the  argument  at  the  Bar.  Her  new 
series  of  laws,  manifesting  her  abandonment  of  these  opinions,  appears 
to  have  commenced  in  December,  1828. 

In  opposition  to  this  original  right,  possessed  by  the  undisputed  occu- 
pants of  evei'y  country  ;  to  this  recognition  of  that  right,  which  is  evi- 
denced by  our  history,  in  every  change  through  which  we  have  passed  ; 
is  placed  the  charters  granted  by  the  monarch  of  a  distant  and  distinct 
region,  parcelling  out  a  territory'  in  possession  of  others  whom  he  could 
not  remove  and  did  not  attempt  to  remove,  and  the  cession  made  of  his 
claims  by  the  treat}'  of  peace. 

The  actual  state  of  things  at  the  time,  and  all  history  since,  explain 
these  charters  ;  and  the  King  of  Great  Britain,  at  the  treaty  of  peace, 
could  cede  onl}'  wiiat  belonged  to  his  crown.  These  newl}'  asserted 
titles  can  derive  no  aid  from  the  articles  so  often  repeated  in  Indian 
treaties;  extending  to  them,  first,  the  protection  of  Great  Biitain,  and 
afterwards  that  of  the  United  States.  These  articles  are  associated 
with  others,  recognizing  their  title  to  self-government.  The  very  fact 
of  repeated  treaties  with  them  recognizes  it ;  and  the  settled  doctrine  of 
the  law  of  nations  is,  that  a  weaker  power  does  not  surrender  its  inde- 
pendence—  its  right  to  self-government,  by  associating  with  a  stronger, 
and  taking  its  protection.  A  weak  State,  in  order  to  provide  for  its 
safet}',  ma}^  place  itself  under  the  protection  of  one  more  powerful, 
without  stripping  itself  of  the  right  of  government,  and  ceasing  to  be  a 
State.  Examples  of  this  kind  are  not  wanting  in  Europe.  "  Tributar}' 
and  feudatory  States,"  says  Vattel,  "  do  not  thereby  cease  to  be  sovereign 
and  independent  States,  so  long  as  self-government  and  sovereign  and 
independent  authorit}^  are  left  in  the  administration  of  the  State."  At 
the  present  day,  more  than  one  State  may  be  considered  as  holding  its 
right  of  self-government  under  the  guarantee  and  protection  of  one  or 
more  allies. 

The  Cherokee  nation,  then,  is  a  distinct  communit}',  occupying  its 
own  territoi-y,  with  boundaries  accurately  described,  in  which  the  laws 
of  Georgia  can  have  no  force,  and  which  the  citizens  of  Georgia  have 
no  riglit  to  enter,  but  with  the  assent  of  the  Cherokees  themselves,  or 
in  conformity  with  treaties,  and  with  the  Acts  of  Congress.     The  whole 


586  WORCESTER   V.   GEORGIA.  [cilAP.  IV. 

intcrcoui'se  between  the  United  States  and  this  nation,  is,  by  our  Con- 
stitution and  laws,  vested  in  tlie  government  of  the  United  States. 

The  Act  of  the  State  of  Georgia,  under  which  the  plaintiff  in  error 
was  prosecuted,  is  conseqnenth'  void,  and  tlie  judgment  a  nullit}-.  Can 
this  court  revise,  and  reverse  it? 

If  the  ol)jection  to  the  system  of  legislation,  lately  adopted  b}'  the 
Legislature  of  Georgia,  in  relation  to  the  Cherokee  nation,  was  confined 
to  its  extra-territorial  operation,  the  objection,  though  complete,  so  far 
as  respected  mere  right,  would  give  this  court  no  power  over  the  sub- 
ject. But  it  goes  much  further.  If  the  review  which  has  been  taken  be 
correct,  and  we  think  it  is,  the  Acts  of  Georgia  are  repugnant  to  the 
Constitution,  laws,  and  treaties  of  the  United  States. 

They  interfere  forcibly  with  the  relations  established  between  the 
United  States  and  the  Cherokee  nation,  the  regulation  of  which,  accord- 
ing to  the  settled  principles  of  our  Constitution,  are  committed  exclu- 
sively to  the  government  of  the  Union. 

They  are  in  direct  hostility  with  treaties,  repeated  in  a  succession  of 
3'ears,  which  mark  out  the  boundary  that  separates  the  Cherokee  coun- 
try* from  Georgia  ;  guarantee  to  them  all  the  land  within  their  boundary  ; 
solemnlv  pledge  the  faith  of  the  United  States  to  restrain  their  citizens 
from  trespassing  on  it ;  and  recognize  the  pre-existing  power  of  the 
nation  to  govern  itself. 

The}'  are  in  equal  hostility  with  the  Acts  of  Congress  for  regulating 
this  intercourse,  and  giving  effect  to  the  treaties. 

The  forcible  seizure  and  abduction  of  the  plaintiff  in  error,  who  was 
residing  in  the  nation  with  its  permission,  and  b}'  authority  of  the  Presi- 
dent of  the  United  States,  is  also  a  violation  of  the  Acts  which  authorize 
the  chief  magistrate  to  exercise  this  authorit}'. 

Will  these  powerful  considerations  avail  the  plaintiff  in  error?  We 
think  the}'  will.  He  was  seized,  and  forcibly  carried  awa}',  while  under 
guardianship  of  treaties  guaranteeing  the  countr}'  in  which  he  resided, 
and  taking  it  under  the  protection  of  the  United  States.  He  was  seized 
while  performing,  under  the  sanction  of  the  chief  magistrate  of  the 
Union,  those  duties  which  the  humane  policy  adopted  by  Congress  had 
recommended.  He  was  apprehended,  tried,  and  condemned,  under 
color  of  a  law  which  has  been  shown  to  be  repugnant  to  the  Constitu- 
tion, laws,  and  treaties  of  the  United  States.  Had  a  judgment,  liable 
to  the  same  objections,  been  rendered  for  property,  none  w'ould  ques- 
tion the  jurisdiction  of  this  court.  It  cannot  be  less  clear  when  the 
judgment  affects  personal  libert}',  and  inflicts  disgraceful  punishment. 
if  punishment  could  disgrace  when  inflicted  on  innocence.  The  plaintiff 
in  error  is  not  less  interested  in  the  operation  of  this  unconstitutional 
law  than  if  it  affected  his  propert}'.  He  is  not  less  entitled  to  the  protec- 
tion of  the  Constitution,  laws,  and  treaties  of  his  country. 

This  point  has  been  elaborately  argued  and,  after  deliberate  con- 
sideration, decided,  in  the  case  of  Cohens  v.  The  Commonwealth  of 
Virginia,  G  Wheat.  264. 


CHAP.  IV.]  ELK  V.   WILKINS.  587 

It  is  the  opinion  of  this  court  that  tlie  judgment  of  the  Superior  Court 
for  the  count}-  of  Gwinnett,  in  the  State  of  Georgia,  condemning  Samuel 
A.  AVorcester  to  hard  labor,  in  tlie  penitentiary'  of  the  State  of  Georgia, 
for  four  years,  was  pronounced  by  that  court  under  color  of  a  law  which 
is  A'oid,  as  being  repugnant  to  the  Constitution,  treaties,  and  laws  of  the 
United  States,  and  onglit,  therefore,  to  be  reversed  and  annulled. 

[The  concurring  opinions  of  McLean,  J.  and  Washikgtgn,  J.,  and  the 
dissenting  opinion  of  Baldwin,  J.,  are  omitted.]  ' 

In  Elk  V.  Wilkins,  112  U.  S.  94  (1884),  on  error  to  the  Circuit 
Court  of  the  United  States  for  the  District  of  Nebraska,  the  plaintiff,  an 
Indian,  had  brought  an  action  against  the  defendant,  the  registrar  of  a 
ward  in  Omaha,  for  refusing  to  register  him  as  a  qualified  voter.  The 
case  turned  on  the  question  whether  the  plaintiff  was  a  citizen  of  the 
United  States.  The  court  (Gray,  J.)  in  holding  that  he  was  not,  said  : 
"  The  question  then  is,  whether  an  Indian,  born  a  member  of  one  of 
the  Indian  tribes  within  tlie  United  States,  is,  merely  by  reason  of  his 
birth  within  the  United  States,  and  of  his  afterwards  voluntarily-  sepa- 
rating himself  from  his  tribe  and  taking  up  his  residence  among  white 
citizens,  a  citizen  of  the  United  States,  within  the  meaning  of  the  first 
section  of  the  Fourteenth  Amendment  of  the  Constitution. 

"  Under  the  Constitution  of  the  United  States,  as  originall}-  estab- 
lished, '  Indians  not  taxed  '  were  excluded  from  the  pei'sons  aficording 
to  whose  numbers  representatives  and  direct  taxes  were  apportioned 
among  the  several  States  ;  and  Congress  had  and  exercised  the  power 
to  regulate  commerce  with  the  Indian  tribes,  and  the  members  thereof, 
whether  within  or  without  the  boundaries  of  one  of  the  States  of  the 
Union.  The  Indian  tribes,  being  within  the  territorial  limits  of  the 
United  States,  were  not,  strictly  speaking,  foreign  States  ;  but  they 
were  alien  nations,  distinct  political  communities,  with  whom  the 
United  States  might  and  habitually  did  deal,  as  the}^  thought  fit,  either 
through  treaties  made  by  the  President  and  Senate,  or  through  Acts  of 
Congress  in  the  ordinary  forms  of  legislation.  The  members  of  those 
tribes  owed  immediate  allegiance  to  their  several  tribes,  and  were  not 
part  of  the  people  of  the  United  States.  They  were  in  a  dependent 
condition,  a  state  of  pupilage,  resembling  that  of  a  ward  to  his  guardian. 
Indians  and  their  propert}',  exempt  from  taxation  by  treat}'  or  statute 
of  the  United  States,  could  not  be  taxed  by  any  State.  General  Acts 
of  Congress  did  not  apply  to  Indians,  unless  so  expressed  as  to  clearl}' 
manifest  an  intention  to  include  them.   .   .   . 

"  The  alien  and  dependent  condition  of  the  members  of  the  Indian 
tribes  could  not  be  put  off  at  their  own  will,  without  the  action  or 
assent  of  the  United  States,  they  were  never  deemed  citizens  of  the 
United  States,  except  under  explicit  provisions  of  treat}'  or  statute 
to  that  effect,   either  declaring  a  certain  tribe,  or  such  members  of 

1  See  Cherokee  Nation  v.  Ga.,  5  Tet.  1  (1831).— Ed. 


588  ELK   V.   WILKINS.  [CIIAP.  IV. 

it  as  chose  to  remain  behind  on  the  removal  of  the  tribe  westward,  to 
be  citizens,  or  authorizing  individuals  of  particular  tribes  to  become 
citizens  on  application  to  a  court  of  the  United  States  for  naturalization, 
and  satisfactory  proof  of  fitness  for  civilized  life.  .   .   . 

"  The  distinction  between  citizenship  by  birth  and  citizensliip  b}' 
naturalization  is  clearly  marked  in  the  provisions  of  the  Constitution, 
by  which  '  no  person,  except  a  natural-born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  ehgible  to  the  oflice  of  President ; '  and  '  the  Congress  shall  have 
power  to  establish  an  uniform  rule  of  naturalization.'  Constitution, 
art.  2,  sect.  1  ;  art.  1,  sect.  8.  .  .  . 

''  This  section  [Amendment  XIV.,  s.  1]  contemplates  two  sources  of 
citizenship,  and  two  sources  onl}' :  birth  and  naturalization.  Tlie  per- 
sons declared  to  be  citizens  are  '  all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof.'  The  evident 
meaning  of  these  last  words  is,  not  merely'  subject  in  some  respect  or 
degree  to  the  jurisdiction  of  the  United  States,  but  completely  subject 
to  their  political  jurisdiction,  and  owing  them  direct  and  immediate 
allegiance.  And  the  words  relate  to  the  time  of  birth  in  the  one  case, 
as  they  do  to  the  time  of  naturalization  in  the  other.  Persons  not  thus 
subject  to  the  jurisdiction  of  the  United  States  at  the  time  of  birth 
cannot  become  so  afterwards,  except  b\-  being  naturalized,  either 
individually,  as  b}'  proceedings  under  the  Naturalization  Acts,  or 
collectively,  as  by  the  force  of  a  treaty  by  which  foreign  territory-  is 
acquired. 

"Indians  born  within  the  territorial  limits  of  the  United  States,  mem- 
bers of,  and  owing  immediate  allegiance  to,  one  of  the  Indian  tribes 
(an  alien,  though  dependent,  power),  although  in  a  geographical  sense 
born  in  the  United  States,  are  no  more  '  born  in  the  United  States  and 
subject  to  the  jurisdiction  thereof,'  within  the  meaning  of  the  first  sec- 
tion of  the  Fourteenth  Amendment,  than  the  children  of  subjects  of  any 
foreign  government  born  within  the  domain  of  that  government,  or  the 
children  born  within  the  United  States,  of  ambassadors  or  other  public 
ministers  of  foreign  nations.  .  .  . 

"  Such  Indians,  then,  not  being  citizens  by  birth,  can  only  become 
citizens  in  the  second  wa}'  mentioned  in  the  Fourteenth  Amendment, 
by  being  '  naturalized  in  the  United  States,'  by  or  under  some  treaty 
or  statute.   .  .  . 

"  Since  the  ratification  of  the  Fourteenth  Amendment,  Congress  has 
passed  several  Acts  for  naturalizing  Indians  of  certain  tribes,  Avhich 
would  have  been  superfluous  if  they  were,  or  might  become,  without 
an\'  action  of  the  government,  citizens  of  the  United  States.  .   .  . 

"  There  is  nothing  in  the  statutes  or  decisions,  referred  to  by  counsel, 
to  control  the  conclusion  to  which  we  have  been  brought  by  a  consider- 
ation of  the  language  of  the  Fourteenth  Amendment,  and  of  the  condi- 
tion of  the  Indians  at  tlie  time  of  its  proposal  and  ratification. 

"  The  Act  of  July  27,  18GS,  ch.  249,  declaring  the  right  of  expatriation 


CHAP.  IV.]  '^"''  ELK  V.  WILKINS.  589 

to  be  a,  natural  and  inherent  right  of  all  people,  and  reciting  that  '  in 
the  recognition  of  tliis  principle  this  government  has  freely  received 
emigrants  from  all  nations,  and  invested  them  with  the  rights  of  citi- 
zenship,' while  it  affirms  the  right  of  ever}'  man  to  expatriate  himself 
from  one  country,  contains  nothing  to  enable  him  to  become  a  citizen 
of  another,  without  being  naturalized  under  its  authority.  15  Stat.  223  ; 
Rev.  Stat.  §  1099. 

"  The  provision  of  the  Act  of  Congress  of  March  3,  1871,  ch.  120,  that 
'  hereafter  no  Indian  nation  or  tribe  within  the  Territory  of  the  United 
States  shall  be  acknowledged  or  recognized  as  an  independent  nation, 
tribe  or  power  with  whom  the  United  States  may  contract  b}'  treaty,' 
is  coupled  with  a  provision  that  the  obligation  of  an}-  treaty  already' 
lawfully-  made  is  not  to  be  thereby  invalidated  or  impaired  ;  and  its 
utmost  possible  effect  is  to  require  the  Indian  tribes  to  be  dealt  with 
for  the  future  through  the  legislative  and  not  through  the  treat3'-making 
power.     16  Stat.  5G6  ;  Rev.  Stat.  §  2079. 

"  In  the  case  of  United  States  v.  Elm,  23  Int.  Rev.  Rec.  419,  decided 
by  Judge  Wallace  in  the  District  Court  of  the  United  States  for  the 
Northern  District  of  New  York,  the  Indian  who  was  held  to  have  a 
right  to  vote  in  1876  was  born  in  the  State  of  New  York,  one  of  the 
remnants  of  a  tribe  which  had  ceased  to  exist  as  a  tribe  in  that  State  ; 
and  by  a  statute  of  the  State  it  had  been  enacted  that  any  native  Indian 
might  purchase,  take,  hold  and  conve\'  lands,  and,  whenever  he  should 
have  become  a  freeholder  to  the  value  of  one  hundred  dollars,  should  be 
liable  to  taxation,  and  to  the  civil  jurisdiction  of  the  courts,  in  the  same 
manner  and  to  the  same  extent  as  a  citizen.  N.  Y.  Stat.  1843,  ch.  87. 
The  condition  of  the  tribe  from  which  he  derived  his  origin,  so  far  as 
any  fragments  of  it  remained  within  the  State  of  New  York,  resembled 
the  condition  of  those  Indian  nations  of  which  Mr.  Justice  Johnson 
said  in  Fletcher  v.  Peck,  6  Cranch,  87,  146,  that  they  '  have  totally 
extinguished  their  national  fire,  and  submitted  themselves  to  the  laws 
of  the  States  ; '  and  which  Mr.  Justice  McLean  had  in  view,  when  he 
observed  in  Worcester  v.  Georgia,  6  Pet.  515,  580,  that  in  some  of  the 
old  States,  '  where  small  remnants  of  tribes  remain,  surrounded  by 
white  population,  and  who,  by  their  reduced  numbers,  had  lost  the 
power  of  self-government,  the  laws  of  the  State  had  been  extended  over 
them,  for  the  protection  of  their  persons  and  propert}'.'  See  also,  as 
to  the  condition  of  Indians  in  Massachusetts,  remnants  of  tribes  never 
recognized  by  the  treaties  or  legislative  or  executive  Acts  of  the 
United  States  as  distinct  political  communities,  Danzell  v.  Welxjnish, 
108  Mass.  133;  Pells  v.  Wehquish,  129  Mass.  469  ;  Mass.  Stat.  1862, 
ch.  184;  1869,  ch.  463. 

"  The  passages  cited  as  favorable  to  the  plaintiff  from  the  opinions 
delivered  in  Ex  parte  Kenyon,  5  Dillon,  385,  390,  in  Ex  parte  Pey- 
nolds,  5  Dillon,  394.  397,  and  in  United  States  v.  Crook,  5  Dillon,  453, 
464,  were  obiter  dicta.  The  Case  of  Peynolds  was  an  indictment  in 
the   Circuit  Court  of  the  United  States  for  the  Western  District  of 


590  ELK   V.   WILKINS.  [CIIAP.  IV. 

Arkansas  for  a  murder  in  the  Indian  country,  of  which  that  court  had 
jurisdiction  if  either  the  accused  or  the  dead  man  was  not  an  Indian, 
and  was  decided  by  Judge  Parker  in  favor  of  the  jurisdiction,  upon  the 
ground  that  both  were  white  men,  and  that,  conceding  the  one  to  be 
an  Indian  b}'  marriage,  the  other  never  was  an  Indian  in  an}-  sense. 
5  Dillon,  397,  404.  Each  of  the  other  two  cases  was  a  writ  of  habeas 
corinis  ;  and  any  person,  whether  a  citizen  or  not,  unlawfully  restrained 
of  his  libert}',  is  entitled  to  that  writ.  Case  of  the  Hottentot  Veiius^ 
13  East,  195;  Case  of  Dos  /Santos,  2  Brock.  493;  In  re  Kaine,  14 
How.  103.  In  Keiiyon's  Case,  Judge  Parker  held  that  the  court  in 
which  the  prisoner  had  been  convicted  had  no  jurisdiction  of  the  sub- 
ject-matter, because  the  place  of  the  commission  of  the  act  was  be3-ond 
the  territorial  limits  of  its  jurisdiction,  and,  as  was  ti'ul}'  said,  '  this 
alone  would  be  conclusive  of  this  case.'  5  Dillon,  390.  In  United 
States  V.  Crook,  the  Ponca  Indians  were  discharged  by  Judge  Dundy 
because  the  militar}-  officers  who  held  them  were  taking  them  to  the 
Indian  Territory  by  force  and  without  any  lawful  authority  (5  Dillon, 
468),  and  in  the  case  at  bar,  as  the  record  before  us  shows,  that 
learned  judge  concurred  in  the  judgment  below  for  the  defendant. 

"The  la w_  upon  the  question  before  us' has  been  well  stated  bj-  Judge 
Deady  in  the  District  Court  of  the  United  States  for  the  District  of 
Oregon.  In  giving  judgment  against  the  plaintiff  in  a  case  resembling 
the  case  at  bar,  he  said:  '  Being  born  a  member  of  "  an  independent 
political  communit}- "  —  the  Chinook  —  he  was  not  born  subject  to  the 
jurisdiction  of  the  United  States  —  not  born  in  its  allegiance.'  MeKay 
V.  Campbell,  2  Sawyer,  118,  134.  And  in  a  later  case  he  said:  '  But 
an  Indian  cannot  make  himself  a  citizen  of  the  United  States  without 
the  consent  and  co-operation  of  the  government.  The  fact  that  he 
has  abandoned  his  nomadic  life  or  tribal  relations,  and  adopted  the 
habits  and  manners  of  civilized  people,  may  be  a  good  reason  wh^'  he 
should  be  made  a  citizen  of  the  United  States,  but  does  not  of  itself  make 
him  one.  To  be  a  citizen  of  the  United  States  is  a  political  privilege 
which  no  one,  not  born  to,  can  assume  without  its  consent  in  some 
form.  The  Indians  in  Oregon,  not  being  born  subject  to  the  jurisdic- 
tion of  the  United  States,  were  not  born  citizens  thereof,  and  I  am  not 
aware  of  an}-  law  or  treaty  bj'  which  any  of  them  have  been  made  so 
since.'      United  States  v.  Osborne,  6  Sawj'er,  406,  409. 

"  Upon  the  question  whether  any  action  of  a  State  can  confer  rights 
of  citizenship  on  Indians  of  a  tribe  still  recognized  by  the  United  States 
as  retaining  its  trilial  existence,  Ave  need  not,  and  do  not,  express  an 
opinion,  because  the  State  of  Nebraska  is  not  shown  to  have  taken  any 
action  affecting  the  condition  of  this  plaintiff.  See  Chirac  v.  Chirac, 
2  Wheat.  259  ;  Fellows  v.  Blacksmith,  19  How.  366  ;  United  States 
V.  Holliday,  3  Wall.  407,  420;  United  States  v.  Joseph,  94  U.  S. 
614,  618. 

'•  The  plaintiff,  not  being  a  citizen  of  the  United  States  under  the 
Fourteenth  Amendment  of  the  Constitution,  has  been  deprived  of  no 


CHAP.  IV.]  UNITED  STATES  V.    KAGAMA.  591 

right  secured  by  the  Fifteenth  Amendment,  and  cannot  maintain  this 
action."  Judgment  affirmed. 

[Harlan,  J.,  for  himself,  and  Woods,  J.,  gave  a  dissenting  oj^inion  in 
which  it  was  said  that  "according  to  the  doctrines  of  the  court,  in 
this  ease  —  if  we  do  not  wholly  misapprehend  the  effect  of  its  decision 
—  the  plaintiff,  if  born  while  his  parents  were  members  of  an  Indian 
tribe,  would  not  be  embraced  by  the  amendment,  even  had  he  been,  at 
the  time  it  was  adopted,  a  permanent  resident  of  one  of  the  States,  sub- 
ject to  taxation,  and,  in  fact,  paying  propert3'  and  personal  taxes,  to 
the  full  extent  required  of  the  white  race  in  the  same  State."]  ^ 


UNITED   STATES   v.  KAGAMA. 

Supreme  Court  of  the  United  States.     1886. 

[118  U.  5.375.] 

Ml'.  Solicitor- General,  for  plaintiff  in  error.  3Ir.  Joseph  D.  Redding, 
for  defendants  in  error. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

Tlie  case  is  brought  here  by  certificate  of  division  of  opinion  between 
the  Circuit  Judge  and  the  District  Judge  holding  the  Circuit  Court  of 
the  United  States  for  District  of  California. 

The  questions  certified  arise  on  a  demurrer  to  an  indictment  against 
two  Indians  for  murder  committed  on  the  Indian  reservation  of  Hoopa 
Valle}^,  in  the  State  of  California,  the  person  murdered  being  also  an 
Indian  of  said  reservation. 

Though  there  are  six  questions  certified  as  the  subject  of  difference, 
the  point  of  them  all  is  well  set  out  in  the  third  and  sixth,  which  are  as 
follows :  — 

"3.  Whether  the  provisions  of  said  section  9  (of  the  Act  of  Congress 
of  March  3,  1885),  making  it  a  crime  for  one  Indian  to  commit  murder 

1  By  the  United  States  Land-in-Severalty  Act  of  Fehrnary  8,  1887,  s.  6  (1  Snpp.  to 
Rev.  St.  U.  S.  5-36),  "Every  Indian  born  vi'ithin  the  territorial  limits  of  the  United 
States  who  has  vohintarily  tai^en  up,  within  said  limits,  his  residence  separate  and 
apart  from  any  tribe  of  Indians  therein  and  has  adopted  the  habits  of  civilized  life,  is 
hereby  declared  to  be  a  citizen  of  the  United  States." 

As  to  the  status  of  tribal  Indians  in  the  different  States,  see  Danzdl  v.  Wehquish, 
108  Mass.  133;  Seneca  Nation  v.  Christie,  126  N.  Y.  122;  State  v.  Newell,  24  Atl. 
Kep.  943  (Maine,  1892) ;  The  Cherokee  Trust  Funds,  117  U.  S.  288,  303.  In  the  last- 
named  case  it  is  said  of  eleven  or  twelve  hundred  Cherokees  who  remained  at  the  East 
when  the  "  Nation "  was  removed  to  the  West,  "  They  ceased  to  be  a  part  of  the 
Cherokee  Nation,  and  henceforth  they  became  citizens  of  and  were  subject  to  the  laws 
of  the  State  in  which  they  resided."  In  State  v.  Newell,  this  language  is  quoted  as 
applicable  to  all  the  Indians  of  Maine.  In  Massachusetts  by  a  statute  of  1869  (c.  463, 
s.  1 )  all  Indians  in  the  State  were  declared  to  be  "  citizens  of  the  Commonwealth." 
—  Ed. 


UA 


592  UNITED   STATES   V.   KAGAMA.  [CIIAP.  IV. 

upon  another  Indian,  npon  an  Indian  reservation  situated  wholly  within 
the  limits  of  a  State  of  the  Union,  and  making  such  Indian  so  commit- 
ting the  crime  of  murder  within  and  upon  such  Indian  reservation  'sub- 
ject to  the  same  laws '  and  subject  to  be  '  tried  in  the  same  courts,  and 
in  the  same  manner,  and  subject  to  the  same  penalties  as  are  all  other 
persons'  committing  the  crime  of  murder  'within  the  exclusive  jurisdic- 
tion of  the  United  States/  is  a  constitutional  and  valid  law  of  the  United 
States?" 

"6.  AVhether  the  courts  of  the  United  States  have  jurisdiction  or 
authority  to  try  and  punish  an  Indian  belonging  to  an  Indian  trilie  for 
committing  the  crime  of  murder  upon  another  Indian  belonging  to  the 
same  Indian  tribe,  both  sustaining  the  usual  tribal  relations,  said  crime 
having  been  committed  upon  an  Indian  reservation  made  and  set  apart 
for  the  use  of  the  Indian  tribe  to  which  said  Indians  both  belong?" 

The  indictment  sets  out  in  two  counts  that  Kagama,  alias  Pactah 
Bilh",  an  Indian,  murdered  lyouse,  alias  Ike,  another  Indian,  at  Hum- 
boldt County-,  in  the  State  of  California,  within  the  limits  of  the  Hoopa 
Valley  Reservation,  and  it  charges  Mahawaha,  alias  Ben,  also  an  Indian, 
with  aiding  and  abetting  in  the  murder. 

The  law  referred  to  in  the  certificate  is  the  last  section  of  the  Indian 
Appropriation  Act  of  that  year,  and  is  as  follows  :  — 

"§  9.  That  iramediatel}-  upon  and  after  the  date  of  the  passage  of 
this  Act  all  Indians  committing  against  the  person  or  property  of  another 
Indian  or  other  person  any  of  the  following  crimes,  nameh*.  murder, 
manslaughter,  rape,  assault  with  intent  to  kill,  arson,  burglary  and  lar- 
cen}-,  within  an}-  Territory  of  the  United  States,  and  either  within  or 
without  the  Indian  reservation,  shall  be  subject  therefor  to  the  laws  of 
said  Territor\-  relating  to  said  crimes,  and  shall  be  tried  therefor  in  the 
same  courts  and  in  the  same  manner,  and  shall  be  subject  to  the  same 
penalties,  as  are  all  other  persons  charged  with  the  commission  of  the 
said  crimes,  respective!}' ;  and  the  said  courts  are  henby  given  juris- 
diction in  all  such  cases  ;  and  all  such  Indians  committing  an}'  of  the 
above  crimes  against  the  person  or  property  of  another  Indian  or  other 
person,  within  the  boundaries  of  any  State  of  the  United  States,  and 
within  the  limits  of  any  Indian  reservation,  shall  be  subject  to  the  same 
laws,  tried  in  the  same  courts  and  in  the  same  manner,  and  subject  to 
the  same  penalties,  as  are  all  other  persons  committing  any  of  the  above 
crimes  within  the  exclusive  jurisdiction  of  the  United  States."  23  Stat, 
ch.  341,  362;  §  9,385. 

The  above  enactment  is  clearly  separ.able  into  two  distinct  definitions 
of  the  conditions  under  which  Indians  may  be  pu nished  for  the  same 
crimes  as  defined  by  the  common  law.  The  first  of  these  is  w^here  the 
oflTence  is  committed  within  the  limits  of  a  territorial  government,  whether 
on  or  off  an  Indian  reservation.  In  this  class  of  cases  the  Indian 
charged  with  the  crime  shall  be  judged  by  the  laws  of  the  Territory  on 
that  subject,  and  tried  by  its  courts.  This  proposition  itself  is  new  in 
legislation  of  Congress,  which  has  heretofore  only  undertaken  to  punish 


CHAP.  IV.]  UNITED    STATES   V.    KAGAMA.  593. 

an  Indian  who  sustains  the  nsiial  relation  to  his  tribe,  and  who  commits 
the  otfence  in  the  Indian  country,  or  on  an  Indian  leservation,  in  excep- 
tional cases  ;  as  where  the  offence  was  against  the  person  or  propert}' 
of  a  white  man,  or  was  some  violation  of  the  trade  and  intercourse 
regulations  imposed  by  Congress  on  the  Indian  tribes.  It  is  new^ 
because  it  now  proposes jto  punish  these  offences  when  they  are  com- 
mitted by  one  Indian  on  the  person  or  property  of  anothc r . 

The  second  is  where  the  offence  is  committed  by  one  Indian  against 
the  ijerson  or  property  of  another,  within  the  limits  of  a  State  of  the 
Union,  but  on  an  Indian  reservation.  In  this  case,  of  which  the  State 
and  its  tribunals  would  have  jurisdiction  if  the  offence  was  committed 
by  a  white  man  outside  an  Indian  reservation,  the  courts  of  the  United 
States  are  to  exercise  jurisdiction  as  if  the  offence  had  been  committed 
at  some  place  within  the  exclusive  jurisdiction  of  the  United  States. 
The  first  clause  subjects  all  Indians  guilty  of  these  crimes  committed 
within  the  limits  of  a  Territory',  to  the  laws  of  that  Territory,  and  to  its 
courts  for  trial.  The  second,  wliicli  applies_solely_to  offences  by  Indians 
which  are  committed  within  the  limits  of  a  State  aiid  the  limits  of  a 
reservation,  subjects  the  offenders  to  the  laws  of  the  United  .States 
passed  for  the  government  of  places  under  the  exclusive  jurisdiction  of 
those  laws,  and  to  trial  by  the  courts  of  the  United  States.  This  is  a 
still  further  advance,  as  asserting  this  jurisdiction  over  the  Indians 
within  the  limits  of  the  States  of  the  Union. 

•  Although  the  offence  charged  in  this  indictment  was  committed  within 
a  State  and  not  within  a  Territory',  the  considerations  which  are  neces- 
sary to  a  solution  of  the  problem  in  regard  to  the  one  must  in  a  large 
degree  affect  the  other. 

The  Constitution  of  the  United  States  is  almost  silent  in  regard  to 
the  relations  of  the  government  which  was  established  b}'  it  to  the 
numerous  tribes  of  Indians  within  its  borders. 

In  declaring  the  basis  on  which  representation  in  the  lower  branch  of 
the  Congress  and  direct  taxation  should  be  apportioned,  it  was  fixed 
that  it  should  be  according  to  numbers,  excluding  Indians  not  taxed, 
which,  of  course,  excluded  neai'ly  all  of  that  race,  but  which  meant  that 
if  there  were  such  within  a  State  as  were  taxed  to  support  the  govern- 
ment, they  should  be  counted  for  representation,  and  in  the  computation 
for  direct  taxes  levied  bv  the  United  States.  This  expression,  exclud- 
ing Indians  not  taxed,  is  found  in  the  XlVth  amendment,  where  it  deals 
with  the  same  subject  under  the  new  conditions  produced  by  the  eman- 
cipation of  the  slaves.  Neither  of  these  shed  much  light  on  the  power 
of  Congress  over  the  Indians  in  their  existence  as  tribes,  distinct  from 
the  ordinar}'  citizens  of  a  State  or  Territoiy. 

The  mention  of  Indians  in  the  Constitution  which  has  received  most 
attention  is  that  found  in  the  clause  which  gives  Congress  "power  to 
regulate  commerce  with  foreign  nations  and  among  the  several  States, 
and  with  the  Indian  tribes." 

This  clause  is  relied  on  in  the  argument  in  the  present  case,  the 
VOL.  I. —38 


<    lA^      594  UNITED   STATES   V.   KAGAMA.  .  [CIIAP.  IV. 

'^''^'' '"  proposition  being  that  the  statute  under  consideration  is  a  regulation 

fK    '          of  commerce  witli  the  Indian  tribes.     But  we  think  it  would  be  a  very 

'/   ■     strained  construction  of  this  clause,  that  a  system  of  criminal  laws  for 

'  Indians  living  peaceably  in  their  reservations,  which  left  out  the  entire 

,-i^Uyi.         code  of  trade  and  intercourse  laws  justly  enacted  under  that  provision. 

La  o\      and  established  punishments  for  the   common-la^v  crimes  of  murder, 

r  y       manslaughter,  arson,  burglary,  larceny,  and  the  like,  without  any  refer- 

tz/^i^-^~  ence  to  their  relation  to  any  kind  of  commerce,  was  authorized  by  the 

grant  of  power  to  regulate  commerce  with  tlie  Indian  tribes.    While  we 


u/-- 


are  not  able  to  see,  in  either  of  these  clauses  of  the  Constitution  and  its 

/{/-ai^'i         amendments,  any  delegation  of  power  to  enact  a  code  of  criminal  law 

for  the  punishment  of  the  worst  class  of  crimes  known  to  civilized  life 

.     '     when  committed  b}'  Indians,  there  is  a  suggestion  in  the  manner  in 

i  /<iVA^   wliich  the  Indian  tribes  are  introduced  into  that  clause,  which  may  have 

^^  a  bearing  on  the  subject  before  us.    The  commerce  with  foreign  nations 

.V.  is  distinctl}'  stated  as  submitted  to  the  control  of  Congress.    AYere  the 

•   .  Indian  tribes  foreign  nations?     If  so,  the}'  came  within  the  first  of  the 

■^■^^        three  classes  of  commerce  mentioned,  and  did  not  need  to  be  repeated 

t^a^<^     as  Indian  tribes.    Were  thej-  nations,  in  the  minds  of  the  framers  of  the 

,         /     Constitution?     If  so,  the  natural  phrase  would  have  been  "foreign 

''  nations  and  Indian  nations,"  or,  in  the  terseness  of  language  uniformly 

fL-y^  -      used  b}'  the  framers  of  the  instrument,  it  would  naturally  have  been 

j-j  "■foreign  and  Indian  nations."    And  so  in  the  case  of  The  Cherokee 

^  '4;  j^'     Nation  v.  The  State  of  Georgia,  5  Pet.  1,  20,  brought  in  the  Supreme 

'^^^■^^    Court  of  the  United  States,  under  the  declaration  that  the  judicial  power 

t/t  WH.  extends  to  suits  between  a  State  and  foreign  States,  and  giving  to  the 

^      ,  Supreme  Court  original  jurisdiction  where  a  State  is  a  part}',  it  was 

'        conceded  that  Georgia  as  a  State  came  within  tlie  clause,  but  held  that 

the  Cherokees  were  not  a  State  or  nation  within  the  meaning  of  the 

,,^j^  Constitution,  so  as  to  be  able  to  maintain  the  suit. 

But  these  Indians  are  within  the  geographical  limits  of  the  United 
jA-^jK^Ayi  States.  The  soil  and  the  people  within  these  limits  .ure  under  the 
\^.A^^^cM\  political  control  of  the  government  of  the  United  States, /or  of  the 
jh  ^  States  of  the  Union.  There  exist  within  the  broad  domain  of  sover- 
eigntv  but  theseTwo.  There  may  be  cities,  counties,  and  other  organ- 
^  J^^~  ized  bodies  with  limited  legislative  functions,  but  they  are  all  derived 
'  c\  in/i^  from,  or  exist  in,  subordination  to  one  or  the  other  of  these.  The  terri- 
A  torial  governments  owe  all  their  i)owcrs  to  the  statutes  of  the  United 

,^x.^,t4/^^  States  conferring  on  them  the  powers  which  they  exercise,  and  which 
^  are  liable  to  be  withdrawn,  modified,  or  repealed  at  any  time  by  Con- 
U)  tw^gress.    AVhat  authority  the  State  governments  may  have  to  enact  crimi- 
nal laws  for  the  Indians  will  be  presently  considered.    But  this  power  of 
M-    'W,'-*-    Congress  to  organize  territorial  governments,  and  make  laws  for  tlieir 
inhnbitants.  arises  not  so  much  from  Jhe  clause  in  the  Constitution  in 
(AAXvu^   regard  to  disposing  of  and  making  rules  and  regulations  concerning 
^  Vv-A^    the  Territory  and  other  property  of  the  United   States,  as  from  the 
,         ownership  of  the  country  in  which  the  Territories  are,  and  the  right  of 


XU^^cy^      XX^^^    ^u0^^^v,xl-    cy^  A^cxcX.  r^i^^  ^y-^^^^^ 

SinA.    (rv^    KjujdL.^   ^^;^,^xjv>^  oUjaXAUrN/v   \\A-^-     -$}  o  \JU^^^  < 

CHAP.  IV.]                         UNITED    STATES   V.    KAGAMA.                                      595  /S^^Tvw^ 

exclusive  sovereignty  which  must  exist  in  the  national  government,  /-yjyr    /^ 

and  can  be  found  nowhere  else.    JfnrjyJii/  v.  Ramsey^  114  U.  S.  15,  44.  ^      '      / 

In  the  case  of  Arnericiui  Ins.   Co.  v.  Canter.,  1  Pet.  511,  542,  in  ^'^^^ 
which  the  condition  of  the  people  of  Florida,  then  under  a  territorial  aa/x^^ 
government,  was  under  consideration,  Marshall,  Chief  Justice,  said  :  /UA/vCxd- 
"Perhaps  the  power  of  governing  a  Territory'  belonging  to  the  United  d ^t_i,ij)A. 
States,  which  has  not,  by  becoming  a  State,  acquired  the  means  of  self- 
government,  may  result  necessaril}'  from  tlie  fact  that  it  is  not  within  . 
the  jurisdiction  of  any  particular  State,  and  is  within  the  power  and /Qto/y' • '^^ 
jurisdiction  of  the  United  States.     The  right  to  govern  may  be  the  .^O^^^.c^ 
inevitable  consequence  of  the  right  to  acquire  territory.     Whichever 
may  be  the  source  whence  the  power  is  derived,  the  possession  of  it  is  . 
unquestioned."  A/iA^uXt 

In  the  case  of  the  United  States  v.  2ioge?-s,  4  How.  567,  572,  where  iw^.'yL 
a  white  man  pleaded  in  abatement  to  an  indictment  for  murder  com-  ^      ^ 
mitted  in  the  countr}-  of  the  Cherokee  Indians,  that  he  had  been  adopted  /  ••^"^^-'^ 
b}^  and  become  a  member  of  the  Cherokee  tribe.  Chief  Justice  Tane}'  ^i^A/t/x.  1 
said:   "The  country  in  which  the  crime  is  charged  to  have  been  com-  ipN  c^.  ;e^ 
mitted  is  a  part  of  the  territory  of  the  United  States,  and  not  within  Q      _^ 
the  limits  of  any  particular  State.     It  is  true  it  is  occupied  b}'  the  ^^^"^  7^ 
Cherokee  Indians.     But  it  has  been  assigned  to  them  b}'  the  United  -C-^^ccf^ 
States  as  a  place  of  domicil  for  the  tribe,  and  they  hold  with  the  assent  <\     f^xM 
of  the  United  States,  and  under  their  authority."     After  referring  to  ^   it 
the  policy  of  the  European  nations  and  the  United  States  in  asserting  \)  ^^ 
dominion  over  all  the  countr}'  discovered  b^'  them,  and  the  justice  of  fC^ifViAyi^' 
this  course,  he  adds:  "But  had  it  been  otherwise,  and  were  the  right  ^^t^^^c^ 
and  the  propriety-  of  exercising  this  power  now  open  to  question,  yet  it  ^y,  jk. 
is  a  question  for  the  law-making  and  political  departments  of  the  gov- 
ernment, and  not  for  the  judicial.    It  is  our  duty  to  expound  and  execute  '^UA:?-  "^ 
the  law  as  we  find  it,  and  we  think  it  too  firmly  and  clearly  established  n^  ■       / 
to  admit  of  dispute,  that  the  Indian  tribes,  residing  within  the  territorial  ,^-^ 
limits  of  the  United  States,  are  subject  to  their  authority,  and  when  the  (/  /V'O"^'^ 
country  occupied  by  one  of  them  is  not  within  the  limits  of  one  of  tjie  /^^^ 
States.  Congress  may  by  law  punish  any  offence  committed  there,  no 
matter  whether  the  offender  be  a  white  man  or  an  Indian."  ^             / 

The  Indian  reservation  in  the  case  before  us  is  land  bought  b}'  the  CM^  ^  ^^ 

United  States  from  Mexico  by  the  treaty  of  Guadaloupe  Hidalgo,  and  ybi^uu.  ^. 

the  whole  of  California,  with  tlie  allegiance  of  its  inhabitants,  many  of  ^  /          yh-. 
whom  were  Indians,  was  transferred  by  that  treat}'  to  the  United  States. 
/    The  relation  of  the  Indian  tribes  living  within  the  borders  of  the^  f^-^lrC/tU 
United  States,  both  before  and  since  the  Revolution,  to  the  people  of 
the  United  States  has  always  been  an  anomalous  one  and  of  a  complex 
character. 


Following  the  policy  of  the  European  governments  in  the  discovery  -jC^yi/Si/i 

of  America  towards  the  Indians  who  were  found  here,  the   colonies  ^^    . 

-before  the  Kevolution  and  the  States  and  the  United  States  since,  have  0\AM\ 

recognized  in  the  Indians  a  possessory  right  to  the  soil  over  which  the}'  x.^-^  "^ 


596  UNITED   STATES    V.    KAGAMA.  [CHAP.  IV. 

roamed  and  hniited  niul  established  occasional  villages.  But  thej' 
asserted  an  ultimate  title  in  the  land  itself,  by  which  the  Indian  tribes 
were  forbidden  to  sell  or  transfer  it  to  other  nations  or  peoples  without 
the  consent  of  this  paramount  authoi'ity.  When  a  tribe  wished  to  dis- 
pose of  its  land,  or  any  part  of  it,  or  the  State  or  the  United  States 
wished  to  purcliase  it,  a  treaty  with  the  tribe  was  the  only  mode  in 
which  this  could  be  done.  The  United  States  recognized  no  right  in 
jrivate  persons,  or  in  other  nations,  to  make  such  a  purchase  by  treaty 
or  otherwise.  With  the  Indians  themselyes  these  relations  are  equally 
difhcult  to  define.  They  were,  and  always  haye  been,  regarded  as 
having  a  I semi-indcpendent|  position  when  they  preserved  their  tribal 
relations  ;  not  as  States,  not  as  nations,  not  as  possessed  of  the  full 
attributes  of  sovereignty,  but  as  a  separate  people,  with  the  power  of 
regulating  their  internal  and  social  relations,  ajjd  thus  far  not  brought 
under  the  laws  of  the  Union  or  of  the  State  within  whose  limits  they 
^.-^T^(rtU/(Q-esided. 

•  ,.  Perhaps  the  best  statement  of  their  position  is  found  in  the  two  opin- 
ir^i^-'v^w^ons  of  this  court  by  Chief  Justice  JNIarshall  in  the  case  of  The  Cherokee 
Nation  v.  Georgia,  5  Pet.  1,  and  in  the  case  of  Worcester  v.  State  of 
Georgia,  6  Pet.  515.  536.  These  opinions  are  exhaustive;  and  in  the 
separate  opinion  of  Mr.  Justice  Baldwin,  in  the  former,  is  a  xQvy  valu- 
able resume  of  the  treaties  and  statutes  concerning  the  Indian  tribes 
pu  previous  to  and  during  the  confederation. 

^  P  In  the  first  of  the  above  cases  it  was  held  that  these  tribes  were 

neither  States  nor  nations,  had  only  some  of  the  attributes  of  sover- 
eignty, and  could  not  be  so  far  recognized  in  that  capacity  as  to  snstfiin 
a  suit  in  the  Supreme  Court  of  the  United  States.  In  the  second  case 
it  was  said  that  they  were  not  subject  to  the  iurisdiction  asserted  over 
5^  '  them  by  the  State  of  Georgia,  which,  because  they  were  jwjthin  Jts 
^,'*-  limits,  where  the}'  had  been  for  ages,  had  attempted  to  extend  her  laws 

and  the  jurisdiction  of  her  courts  over  them. 

In  the  opinions  in  these  cases  they  are  spoken  of  as  "  wards_of  the 

nation,"  "pupils,"  as  local  dependent  communities.  ^In  tMs  sjjirit  the 

X^oZmtm  United  States  has  conducted  its  relations  to  them  from  its  organization 

^  to  this  time.  V  But,  after  an  experience  of  a  hundred  years  of  the  treaty- 

<.  T^c<.    making  system  of  government.  Congress  h.ns  determinprl  npnn  a  now 

c     \y        departure  —  to  govern  them  by  Acts  of  Congress.     This  is  seen  in  the 

^  Act  of  March  3,  1871,  embodied  in  §  2079  of  the  Revised  Statutes  : 

"^  rW.  it  ^Q  Indian  nation  or  tribe,  within  the  territor}'  of  the  United  States, 

K^ji.a.'uui  shall  be  acknowledged  or  recognized  as  an  independent  nation,  tribe, 
or  power,  with  whom  the  United  States  may  contract  by  treat}- ;  but 
-''^'^y-^  no  obligation  of  any  treat}'  lawfully  made  and  ratified  with  any  such 
-  (L^^, Indian  nation  or  tribe  prior  to  March  third,  eighteen  hundred  and 
'^'^^      seventy-one,  shall  be  hereby  invahdated  or  impaired." 

The  case»of  Crow  Dog,  109  U.  S.  556,  in  which  an  agreement  with 

the  Sioux  Indians,  ratified  by  an  Act  of  Congress,  was  supposed  to 

;j,^t^-    extend  over  them  the  laws  of  the  United  States  and  the  jurisdiction  of 


^-<-^\   .C^c-^^A^r^     r^^j,-^^.^^\-^A^^     oc     ^*-ov^^    O-/     it~^s^juLyhy 


A_A-'\jSt)xj 


I^^—V^^     QJ^^^SU....^JCJUX.       C.^d.-tW      t-^—      ^(-^    V^c^^b^ 

CHAP.  IV.]  UNITED   STATES   V.    KAGAMA.  597    ^^^  '^^ 

its  courts,  covering  murder  antl  other  grave  crimes,  shows  the  purpose     „^^__l^ 
of  Congress  in  this  new  departure.     The  decision  in  that  case  admits      ^Ajfe^ft. 
that  if  the  intention  of  Congress  had  been  to  punish,  by  the  United  '^ 

States  courts,  the  mui'der  of  one  Indian  by  another,  the  law  would  have 
been  valid.  But  the  court  could  not  see,  in  the  agreement  with  the 
Indians  sanctioned  by  Congress,  a  purpose  to  repeal  §  214:6  of  the  Re- 
vised Statutes,  which  expressly  excludes  from  that  jurisdiction  the  case 
of  a  crime  committed  by  one  Indian  against  another  in  the  Indian 
country.  The  passage  of  the  Act  now  under  consideration  was  designed 
to  remove  that  objection,  and  to  go  further  bj-  including  such  crimes  on 
reservations  lying  within  a  State. 

Is  this  latter  fact  a  fatal  objection  to  the  law?  The  statute  itself 
contains  no  express  limitation  upon  the  powers  of  a  State  or  the  juris- 
diction of  its  courts.  If  there  be  any  limitation  in  either  of  these,  it 
grows  out  of  the  implication  arising  from  the  fact  that  Congress  has 
defined  a  crime  committed  within  the  State,  and  made  it  punishable  in 
the  courts  of  the  United  States.  But  Congress  has  done  this,  and  can 
do  it,  with  regard  to  all  offences  relating  to  matters  to  which  the  Federal 
authority  extends.     Does  that  authority  extend  to  this  case? 

It  will  be  seen  at  once  that  the  nature  of  the  offence  (murder)  is  one 
which  in  almost  all  cases  of  its  commission  is  punishable  by  the  laws  of 
the  States,  and  within  the  jurisdiction  of  their  courts.  The  distinction 
is  claimed  to  be  that  the  ofience  under  the  statute  is  committed  by  an 
Indian,  that  it  is  committed  on  a  reservation  set  apart  within  the  State 
for  residence  of  the  tribe  of  Indians  by  the  United  States,  and  the  fair 
inference  is  that  the  offending  Indian  shall  belong  to  that  or  some  other 
tribe.  It  does  not  interfere  with  the  i^rocess  of  the  State  courts  within 
the  reservation,  nor  with  the  operation  of  State  laws  upon  white  people 
found  there.  Its  eflTect  is  confined  to  the  acts  of  an  Indian  of  some  tribe, 
of  a  criminal  character,  committed  within  the  limits  of  the  reservation. 

It  seems  to  us  that  this  is  within  the  competency  of  Congress.  These 
Indian  tribes  are  the  wards  of  the  nation.  They  are  communities 
dependent  on  the  United  States.  Dependent  largely  for  their  daily 
food.  Dependent  for  their  political  rights.  They  owe  no  allegiance  to 
the  States,  and  receive  from  them  no  protection.  Because  of  the  local 
ill  feeling,  the  people  of  the  States  where  the}-  are  found  are  often  their 
deadliest  enemies.  From  their  very  weakness  and  helplessness,  so 
largely  due  to  the  course  of  dealing  of  the  Federal  government  with 
them  and  the  treaties  in  which  it  has  been  promised,  there  arises  the 
duty  of  protection,  and  with  it  the  power.  This  has  always  been  recog- 
nized hy  the  Executive  and  b}-  Congress,  and  by  this  court,  whenever 
the  question  has  arisen. 

In  the  case  of  Worcester  v.  The  State  of  Georgia^  above  cited,  it  was 
held  that,  though  the  Indians  had  b}'  treaty  sold  their  land  within  that 
State,  and  agreed  to  remove  away,  which  thej'  had  failed  to  do,  the 
State  could  not,  while  they  remained  on  those  lands,  extend  its  laws, 
criminal  and  civil,  over  the  tribes  ;  that  the  duty  and  power  to  compel 


598  UNITED   STATKS   V.    KAGAMA.  [CHAP.  IV. 

their  removal  was  in  the  United  States,  and  the  tribe  was  under  their 
protection,  and  could  not  be  subjected  to  the  laws  of  tlie  State  and  the 
process  of  its  courts. 

The  same  thing  was  decided  in  the  case  of  Fellows  v.  Blacksmith  & 
Others,  19  How.  3G6.  In  this  case,  also,  the  Indians  had  sold  their 
lands  under  supervision  of  the  States  of  Massachusetts  and  of  New 
York,  and  had  agreed  to  remove  within  a  given  time.  When  the  time 
came  a  suit  to  recover  some  of  the  land  was  brought  in  the  Supreme 
Court  of  New  York,  which  gave  judgment  for  the  plaintiff.  But  this 
court  held,  on  writ  of  error,  that  the  State  could  not  enforce  this  removal, 
but  the  duty  and  the  power  to  do  so  was  in  the  United  States.  See 
also  the  case  of  the  Kansas  Indians,  5  Wall.  737  ;  JVew  York  Indians, 
5Wall.  7G1. 

The  power  of  the  general  government  over  these  remnants  of  a  race 
once  powerful,  now  weak  and  diminished  in  numbers,  is  necessary  to 
their  protection,  as  well  as  to  the  safety  of  those  among  whom  they 
dwell.  It  must  exist  in  that  government,  because  it  never  has  existed 
anywhere  else,  because  the  theatre  of  its  exercise  is  within  the  geo- 
graphical limits  of  the  United  States,  because  it  has  never  been  denied, 
and  because  it  alone  can  enforce  its  laws  on  all  the  tribes. 

We  ansicer  the  questions  jyropounded  to  us,  that  the  Qth  section  of  the 
Act  of  March,  1885,  is  a  valid  law  in  both  its  branches,  and  that 
the  Circuit  Court  of  the  United  States  for  the  District  of  California 
has  jurisdiction  of  the  offence  charged  in  the  indictment  in  this 
case.^ 

1  See  also  Gon-shajj-ee,  Pet'r,  130  U.  S.  343  (1889),  and  U.  S.  v.  Osborne,  6  Sawyer, 
U.  S.  C.  C.  Kep.  (Oregon)  406  (1880). 

The  legal  and  political  condition  of  the  tribal  Indians  was  carefully  treated,  in  1891, 
in  two  articles  entitled  "A  People  without  Law,"  in  the  Octolier  and  November  numbers 
of  the"  Atlantic  Monthly,"  Vol.  68,  pp.  540,  676.  Of  the  leading  modern  statutes,  of 
general  application,  relating  to  these  people,  it  is  there  said  (p.  676) :  "Three  impor- 
tant laws  regarding  the  Indians  remain  to  be  mentioned,  one  of  which  was  incorporated 
in  the  Revised  Statutes. 

"  {a)  A  statute  of  March  3,  1871.  reads :  '  No  Indian  nation  or  tribe  within  the  terri- 
tory of  the  UnitedStates  shall  be  acknowledged  or  recognized  as  an  independent  nation, 
tribe,  or  power  with  whom  the  United  States  may  contract  by  treaty,'  —  saving,  how- 
ever, the  obligation  of  previous  treaties.  .  .  .  Yet  we  do  make  'agreements'  with 
them  as  with  a  separate  people ;  and  the  chief  result  of  tliis  law  is,  and  was  intended 
to  be.  that  it  is  no  longer  the  President  and  Senate  (the  treaty-making  power)  that 
conclude  these  measures,  but  the  legislative  body,  Congress.  This  statute  was  tiie 
result  of  a  struggle  on  the  part  of  t-he  House  of  Representatives  to  share  in  these  pro- 
ceedings, and  was  forced  upon  the  Senate  on  the  last  day  of  a  session  by  putting  it  into 
an  appropriation  bill.  It  was  thought  at  the  time  by  so  competent  an  observer  as 
General  Walker,  formerly  Commissioner  of  Indian  Affairs,  to  be  '  a  deadly  blow  at  the 
tribal  autonomy ; '  and  so  it  was,  in  the  logic  of  it.  But  the  step  was  not  then  followed 
up,  for  it  did  not  represent  any  clear  determination  of  Congress  to  end  the  old  metliods  ; 
and  this  strange  notion  of  refusing  to  make  treaties  with  a  people  with  whom  we  con- 
tinue to  go  to  war  has  remained  on  our  statute-book  as  another  of  the  many  anomalies 
tliat  mark  our  Indian  policy.  .  .  . 

"  (h)  The  second  statutels  that  of  March  3, 188.5.  It  followed  up  timidly  the  logic  of 
the  law  of  1871,  though  for  only  a  step  or  two ;  but  it  marked  the  greatest  advance  yet 


CHAP.  IV.]  UNITED    STATES   V.   KAGAMA.  599 

reached  in  the  process  of  assuming  the  direct  goverrnnent  of  the  Indians.  The  hiw 
provided  that  thereafter  ludiaus  should  be  punished  for  committing  upon  Indians  or 
others  any  one  of  seven  leading  crimes  (murder,  mauslaugliter,  assault  with  intent  to 
kill,  rape,  arson,  burglary,  or  larceny) :  if  in  a  Territory  (whetlier  on  or  off  a  reserva- 
tion), under  the  territorial  laws  and  in  the  territorial  courts;  and  if  in  a  State  and  on 
a  reservation,  then  under  the  same  laws  and  in  the  same  courts  us  if  the  act  were  done 
in  a  place  within  the  exclusive  jurisdiction  of  the  United  States.  This  is  a  very  impor- 
tant statute.  In  principle  it  claim.s  for  the  United  States  full  jurisdiction  over  the 
Indians  upon  their  reservations,  whether  in  a  State  or  Territory.  Heretofore,  the  laws, 
for  example,  the  statute  of  1817  and  the  reuev.als  of  it,  had  excepted  the  acts  of  Indians 
committed  upon  their  fellows  within  tlie  Indian  country.  The  acts  of  Indians  against 
white  persons  or  of  whites  against  Indians  had  been  dealt  with,  but  the  internal  economy 
of  Indian  government  was  not  invaded  in  its  dealing  or  refusing  to  deal  witli  the  rela- 
tions  of  members  of  the  tribe  to  one  another.  The  constitutionality,  even,  of  such 
legislation  as  this  of  1885  had  been  denied.  Judges  had  been  careful  to  avoid  asserting 
this  full  power  in  cases  wliere  the  reservation  was  in  a  State.  Thus  the  Supreme  Court 
of  the  United  States,  in  1845,  in  holding  good  the  law  of  1817,  which  punished  (in  this 
particular  case)  the  act  of  a  white  man  against  a  white  man  in  the  Indian  country, 
among  the  Cherokees,  said :  '  Where  the  country  occupied  by  them  is  not  within  the 
limits  of  one  of  the  States,  Congress  may  by  law  punish  any  offence  committed  there, 
no  matter  whether  the  offender  be  a  white  man  or  an  Indian.'  In  1834,  Mr.  Justice 
McLean  had  denied  the  power  of  Congress  to  legislate  in  this  way  for  an  Indian  reser- 
vation in  a  State,  while  admitting  it  in  a  Territory;  and  in  December,  1870,  the  judi- 
ciary committee  of  the  Senate  of  the  United  States  even  went  so  far  as  to  say,  'An 
Act  of  Congress  which  should  assume  to  treat  the  members  of  a  tribe  as  subject  to  the 
municipal  jurisdiction  of  the  United  States  would  be  unconstitutional  and  void.'  But 
the  air  was  at  last  cleared  in  1886,  wlien  the  Supreme  Court  of  the  United  States  had 
to  deal  with  the  indictment,  under  this  statute,  of  one  Indian  for  the  murder  of  another 
Indian  on  a  reservation  in  the  State  of  California.  .  .  . 

"  The  existence  of  this  riglit  and  power,  and  the  clear  and  authoritative  declaration 
of  it  by  the  Supreme  Court  of  the  United  States  for  the  first  time  in  1 886,  have  brought 
home  to  the  Congress  of  the  United  States  and  to  us  all,  now  within  these  recent  years, 
a  great  weight  of  responsibility.  It  may  have  been  thought  possible  before  to  deny  the 
legal  power  fully  to  govern  the  Indians.  It  cannot  be  denied  now.  Under  such  cir- 
cumstances, the  mere  neglect  or  refusal  to  act  is  itself  action,  and  action  of  the  worst 
kind. 

"  (c)  The  third  and  last  of  these  statutes  —  and  the  last  upon  which  I  shall  comment 
—  is  the  General  Land-in-Severalty  Law  (often  known  as  the  Dawes  Bill).  This  was 
passed  in  February,  1887,  within  nine  months  of  the  great  decision  upon  which  I  have 
just  been  remarking:  the  dates  are  May  10,  1886,  and  February  8,  1887.  But  it  was 
pending  in  Congress  at  the  time  of  that  decision,  and  had  long  been  pending  there 
under  bitter  opposition.  This  great  enactment  opens  the  way,  within  a  generation  or 
two,  to  settle  the  whole  Indian  question.  Whether  it  is  to  be  regarded  as  a  good  law 
or  a  bad  one,  however,  depends  on  the  moderation  with  which  it  is  administered.  The 
peculiarity  of  it  is  not  that  its  methods  are  new,  for  similar  arrangements  liad  repeatedly 
been  made,  for  a  score  of  years  before,  in  the  case  of  particular  tribes,  as  the  Winne- 
bagoes  in  186.3,  the  Stockbridge  Munsee  Indians  in  1871,  the  Utes  in  1880,  and  the 
Omahas  in  1882.  But  now,  by  a  general  law  applicable  to  all  reservations,  the  Presi- 
dent is  given  powder  to  make  almost  every  reservation  Indian  outside  the  civilized 
tribes  a  land-owner  in  severalty  and  a  citizen  of  the  United  States  agai)>st  his  will.  The 
right  of  citizenship  is  made  to  follow  the  ownership  of  land." 

See  also  a  valuable  article  on  "The  Legal  Status  of  the  Indian,"  by  George  F. 
Canfield,  Esq.,  now  of  the  Bar  of  the  City  of  New  York,  in  15  Am.  Law  Rev.  21 
(1881).  — Ed. 


600  MUKRAY    V.    UOBOKEN    L.A_ND,   ETC.    CO.  [cUAP.  IV. 


DEN   d.  MURRAY  et  al.  v.  THE   IIOBOKEN   LAND,   etc. 

COMPANY. 

Supreme  Court  of  the  United  States.     1855. 

[18  How.  272.]  1 

Mr.  Van  Winkle  and  Mr.  Wood,  for  the  plaintiffs.  3Ir.  Zabriskie, 
3Ir.  Gillett,  3Ir.  Butler,  and  Mr.  Bradley,  for  the  defendants. 

Mr.  Justice  Curtis  delivered  the  opinion  of  the  court. 

This  case  comes  before  us  on  a  certificate  of  division  of  opinion  of 
the  judges  of  tlie  Circuit  Court  of  the  United  States  for  the  District  of 
New  Jerse}'.  It  is  an  action  of  ejectment,  in  which  both  parties  claim 
title  under  Samuel  Swartwout  —  the  plaintiffs,  under  the  levy  of  an 
execution  on  the  10th  day  of  April,  1839,  and  the  defendants,  under 
a  sale  made  by  the  marshal  of  the  United  States  for  the  District  of 
New  Jersey,  on  the  1st  day  of  June,  1839  —  b^-  virtue  of  what  is  de- 
nominated a  distress  warrant,  issued  by  the  solicitor  of  the  treasury 
under  the  Act  of  Congress  of  May  15,  1820,  entitled,  '■'-  An  Act  pro- 
viding for  the  Better  Oroanization  of  the  Treasury  Department."  This 
Act  having  provided,  by  its  first  section,  that  a  lien  for  the  amount  due 
should  exist  on  the  lands  of  the  debtor  from  the  time  of  the  lev}'  and 
record  thereof  in  the  office  of  the  District  Court  of  the  United  States 
for  the  proper  district,  and  the  date  of  that  lev}'  in  this  case  being  prior 
to  the  date  of  the  judgment  under  which  the  plaintiffs'  title  was  made, 
tlie  question  occurred  iu  the  Circuit  Court,  *•  whether  the  said  warrant 
of  distress  in  the  s|)ecial  verdict  mentioned,  and  the  proceedings  thereon 
and  anterior  thereto,  under  which  the  defendants  claim  title,  are  suffi- 
cient, under  the  Constitution  of  the  United  States  and  the  law  of  the 
land,  to  pass  and  transfer  the  title  and  estate  of  the  said  Swartwout  in 
and  to  the  premises  in  question,  as  against  the  lessors  of  the  plaintiff." 
Upon  this  question,  the  judges  being  of  opposite  opinions,  it  was  certi- 
fied to  this  court,  and  has  been  argued  by  counsel. 

No  objection  has  been  taken  to  the  warrant  on  account  of  any  defect 
or  irregularity  in  the  proceedings  which  preceded  its  issue.  It  is  not 
denied  that  they  were  in  conformity  with  the  requirements  of  the  Act 
of  Congress.  The  special  verdict  finds  that  Swartwout  was  collector  of 
the  customs  for  the  port  of  New  York  for  eight  years  before  the  29th  of 
March,  1838  :  that,  on  the  10th  of  November,  1838,  his  account,  as  such 
collector,  was  audited  by  the  first  auditor,  and  certified  by  the  first 
comptroller  of  the  treasury  ;  and  for  the  balance  thus  found,  amount- 
ing to  the  sum  of  $1,374,119  ^^%,  the  warrant  in  question  was  issued 
by  the  solicitor  of  the  treasury.  Its  validity  is  denied  by  the  plaintiffs, 
upon  the  ground  that  so  much  of  the  Act  of  Congress  as  authorized 
it,  is  in  conflict  with  the  Constitution  of  the  United  States. 

1  The  statement  of  facts  is  omitted.  —  Ed. 


CHAP.  IV.]  MUKRAY    V.   HOBOKEN   LAND,   ETC.    CO.  COl 

In  support  of  this  position,  tlie  plaiutitf  relies  on  that  part  of  the 
first  section  of  tlie  third  article  of  the  Constitution  which  requires  the 
judicial  power  of  the  United  States  to  be  vested  in  one  Supreme  Court 
and  in  such  inferior  courts  as  Congress  may,  from  time  to  time,  ordain 
and  estabUsh  ;  the  judges  whereof  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  diminished  during  their  continuance  in  office. 
Also,  on  the  second  section  of  the  same  article,  which  declares  that  the 
judicial  power  shall  extend  to  controversies  to  which  the  United  States 
shall  be  a  party. 

It  must  be  admitted  that,  if  the  auditing  of  this  account,  and  the 
ascertainment  of  its  balance,  and  the  issuing  of  this  process,  was  an 
exercise  of  the  judicial  power  of  the  United  States,  the  proceeding 
was  void ;  for  the  officers  who  performed  these  Acts  could  exercise  no 
part  of  that  judicial  power.  They  neither  constituted  a  court  of  the 
United  States,  nor  were  they,  or  either  of  them,  so  connected  with  any 
such  court  as  to  perform  even  any  of  the  ministerial  duties  which  arise 
out  of  judicial  proceedings. 

The  question,  whether  these  Acts  were  an  exercise  of  the  judicial 
power  of  the  United  States,  can  best  be  considered  under  another 
inquiry,  raised  by  the  furtlier  objection  of  the  plaintitf,  that  the  effect 
of  the  proceedings  authorized  by  the  Act  in  question  is  to  deprive  the 
party,  against  whom  the  warrant  issues,  of  his  liberty  and  property, 
"without  due  process  of  law;  "  and,  therefore,  is  in  conflict  with  the 
fifth  article  of  the  amendments  of  the  Constitution. 

Taking  these  two  objections  together,  they  raise  the  questions, 
whetlier,  under  the  Constitution  of  the  United  States,  a  collector  of  the 
customs,  from  whom  a  balance  of  account  has  been  found  to  be  due 
by  accounting  officers  of  the  treasur}',  designated  for  that  purpose  by 
law,  can  be  deprived  of  his  liberty',  or  propert}',  in  order  to  enforce 
paym.ent  of  that  balance,  without  the  exercise  of  the  judicial  power  of 
the  United  States,  and  yet  by  due  process  of  law,  within  the  meaning 
of  those  terms  in  the  Constitution  ;  and  if  so,  then,  secondly,  whether 
the  warrant  in  question  was  such  due  process  of  law  ? 

The  words,  ^^due  process  of  law,"  were  undoubtedly  intended  to 
convey  the  same  meaning  as  the  words,  "by  the  law  of  the  land,"  in 
Magna  Charta.  Lord  Coke,  in  his  commentary  on  those  words  (2  Inst. 
50),  says  the}'  mean  due  process  of  law.  The  constitutions  which  bad 
been  adopted  by  the  several  States  before  the  formation  of  the  Federal 
Constitution,  following  the  language  of  the  great  charter  more  closeh', 
generally  contained  the  words,  "  but  b}-  the  judgment  of  his  peers,  or  the 
law  of  the  land."  The  ordinance  of  Congress  of  July  13,  1787,  for 
the  government  of  the  territory  of  the  United  States  northwest  of  the 
river  Ohio,  used  the  same  words. 

The  Constitution  of  the  United  States,  as  adopted,  contained  the 
provision,  that  "  the  trial  of  all  crimes,  except  in  cases  of  impeagh- 
ment,  shall  be  by  jury."     When  the  fifth  article  of  amendment  contain- 


602  MURRAY   V.   HOBOKEN   LAND,   ETC.   CO.  [CIIAP.  IV. 

ing  the  words  now  in  question  was  made,  the  trial  by  jury  in  criminal 
cases  had  thus  alread}'  been  provided  for.  By  the  sixth  and  seventh 
articles  of  amendment,  further  special  provisions  were  separately  made 
for  that  mode  of  trial  in  civil  and  criminal  cases.  To  have  followed, 
as  in  the  State  constitutions,  and  in  the  ordinance  of  1787,  the  words 
of  JNIagna  Charta,  and  declared  that  no  person  shall  be  deprived  of  his 
life,  libert}-,  or  property-  but  by  the  judgment  of  his  peers  or  the  law  of 
the  land,  would  have  been  in  part  superfluous  and  inappropriate.  To 
have  taken  the  clause,  "  law  of  the  land,"  without  its  immediate  con- 
text, might  possibly  have  given  rise  to  doubts,  which  would  be  effect- 
ually dispelled  by  using  those  words  which  the  great  commentator  on 
Magna  Charta  had  declared  to  be  the  true  meaning  of  the  phrase,  "law 
of  the  land,"  in  that  instrument,  and  which  were  undoubtedly  then 
received  as  their  true  meaning. 

That  the  warrant  now  in  question  is  legal  process,  is  not  denied.     It 
was  issued  in  conformit}'  w'ith  an  Act  of  Congress.     But  is   it  "due 
/  process  of  law  "  ?     The  Constitution  contains  no  description  of  those 

■^p/'lAH^  processes  which  it  was  intended  to  allow  or  forbid.  It  does  not  even 
il .  ^  declare  what  principles  are  to  be  applied  to  ascertain  whether  it  be  due 
^^-^^-^  process.  It  is  manifest  that  it  was  not  left  to  the  legislative  power  to 
(jgA.  <i  enact  an}'  process  which  might  be  devised.  The  article  is  a  restraint  on 
_  the  legislative  as  well  as  on  the  executive  and  judicial  powers  of  the 

'^^'^^■^      government,  and  cannot  be  so  construed  as  to  leave  Congress  free  to 
lAjx^ui^.make  anv  process  "due  process  of  law,"  bj'  its  mere  will.     To  what 
principles,  then,  are  we  to  resort  to  ascertain  whether  this  process, 
^^^  enacted  b}'  Congress,  is  due  process?    To  this  the  answer  must  be  two- 

^^Qjjui-  fold.  We  must  examine  the  Constitution  itself,  to  see  Avhether  this 
process  be  in  conflict  with  any  of  its  provisions.  If  not  found  to  be 
/iV/«A,t.  gQ^  ^.g  jQust  look  to  those  settled  usages  and  modes  of  proceeding 
1^^^  -existing  in  the  common  and  statute  law  of  England,  before  the  emigra- 
^  ^  tion  of  our  ancestors,  and  which  are  shown  not  to  have  been  unsuited 
-n.'Hm.  to  their  civil  and  political  condition  b^'  having  been  acted  on  by  them 
.  after  the  settlement  of  this  country.     We  apprehend  there  has  been  no 

•      .      period,  since  the  establishment  of  the  English  monarchy,  when   there 
0.  iAjrjd.-  has  not  been,  by  the  law  of  the  land,  a  summary  method  for  the  re- 
covery of  debts  due   to   the   Crown,  and   especially   those   due   from 
receivers  of  the  revenues.      It  is  difficult,  at  this  day,  to  trace  with 
<^(x^        precision  all  the  proceedings  had  for  these  purposes  in  the  earliest 
./-a/vu/i/ 5(  ages  of  the  common  law.     That  they  were  summary  and  severe,  and 
0      ^     had  been  used  for  purposes  of  oppression,  is  inferable  from  the  fact 
•^^-^  that  one  chapter  of  Magna  Charta  treats  of  their  restraint.    It  declares  : 

'^  r(  "  We  or  our  bailiffs  shall  not  seize  any  land  or  rent  for  any  debt  as  long 
^  ^  as  the  present  goods  and  chattels  of  the  debtor  do  suffice  to  pay  the 
■^  debt,  and  the  debtor  himself  be  ready  to  satisfy-  therefor.    Neither  shall 

-w^AA^XM^  the  pledges  of  the  debtor  be  distrained,  as  long  as  the  principal  debtor 
is  sufficient  for  the  payment  of  the  debt ;  and  if  the  principal  debtor 
■^A-e^/V      fail  in  payment  of  the  debt,  having  nothing  wherewith  to  pay,  or  will 


^)jWA/ 


CHAP.  IV.]  MURRAY   V.    HOBOKEN   LAND,   ETC.   CO.  603  -^Jf^^,^ 

not  pay  where  be  is  able,  the  pledges  shall  answer  for  the  debt.  And 
if  the}'  will,  the}'  shall  have  the  lands  and  rents  of  the  debtor  until  they 
be  satisfied  of  the  debt  which  they  before  paid  for  him,  except  that  the 
principal  debtor  can  show  himself  to  be  acquitted  against  the  said 
sureties." 

Bx-the  common  law,  the  body,  lands,  and  goods  of  the  king's  debtor 
were  liable  to  be  levied  on  to  obtain  payment.  In  conformity  with  the 
above  provision  of  Magna  Charta,  a  conditional  writ  was  framed,  com- 
manding the  sheriff  to  inquire  of  the  goods  and  chattels  of  the  debtor, 
and,  if  they  were  insufficient,  then  to  extend  on  the  lands.  3  Co.  12  h ; 
Com.  Dig.,  Debt,  G.  2  ;  2  Inst.  19.  But  it  is  said  that  since  the  statute 
33  Hen.  VIII.  c.  39,  the  practice  has  been  to  issue  the  writ  in  an  abso- 
lute form,  without  requiring  any  previous  inquisition  as  to  the  goods. 
Gilbert's  Exch.  127. 

To  authorize  a  writ  of  extent,  however,  the  debt  must  be  matter  of 
record  in  the  king's  exchequer.  The  33  Hen.  VIII.  c.  39,  §50,  made  all 
specialty  debts  due  to  the  king  of  the  same  force  and  effect  as  debts 
by  statute  staple,  thus  giving  to  such  debts  the  effect  of  debts  of  record. 
In  regard  to  debts  due  upon  simple  contract,  other  than  those  due  from 
collectors  of  the  revenue  and  other  accountants  of  the  Crown,  the 
practice,  from  very  ancient  times,  has  been  to  issue  a  commission  to 
inquire  as  to  the  existence  of  the  debt. 

This  commission  being  returned,  the  debt  found  was  thereby  evi- 
denced by  a  record,  and  an  extent  could  issue  thereon.  No  notice  was 
required  to  be  given  to  the  alleged  debtor  of  the  execution  of  this 
commission  (2  Tidd's  Pr.  1047),  though  it  seems  that,  in  some  cases, 
an  order  for  notice  might  be  obtained.  1  Ves.  2G9.  Formerly,  no 
witnesses  were  examined  by  the  commission  (Chitt3''s  Prerog.  267  ; 
West,  22)  ;  the  affidavit  prepared  to  obtain  an  order  for  an  immediate 
extent  being  the  only  evidence  introduced.  But  this  practice  has  been 
recently  changed.  11  Price,  29.  By  the  statute  13  Eliz.  ch.  4,  balances 
due  from  receivers  of  the  revenue  and  all  other  accountants  of  the 
Crown  were  placed  on  the  same  footing  as  debts  acknowledged  to  be 
due  by  statute  staple.  These  balances  were  found  by  auditors,  the 
particular  officers  acting  thereon  having  been,  from  time  to  time,  varied 
by  legislation  and  usage.  The  different  methods  of  accounting  in 
ancient  and  modern  times  are  described  in  Mr.  Price's  Treatise  on  the 
Law  and  Practice  of  the  Exchequer,  ch.  9.  Such  balances,  when  found, 
were  certified  to  what  was  called  the  pipe  office,  to  be  given  in  charge 
to  the  sheriffs  for  their  lev}'.     Price,  231. 

If  an  accountant  failed  to  render  his  accounts,  a  process  was  issued, 
termed  a  ccqjias  nomine  districtionis,  against  the  body,  goods,  and 
lands  of  the  accountant.     Price,  162,  233,  note  3. 

This  brief  sketch  of  the  modes  of  proceeding  to  ascertain  and  enforce 
payment  of  balances  due  from  receivers  of  the  revenue  in  England,  is 
sufficient  to  show  that  the  methods  of  ascertaining  the  existence  and 
amount  of  such   debts,  and   compelling   their   payment,   have   varied 


604  MURIUY  V.   HOBOKEN  LAND,  ETC.  CO.      [cHAP.  IV. 

wklely  from  the  usual  course  of  the  common  law  on  other  subjects; 
aud  that,  as  respects  such  debts  due  from  such  officers,  "  the  law  of 
the  land"  authorized  the  employment  of  auditors,  and  an  inquisi- 
tion williout  notice,  and  a  species  of  execution  bearing  a  very  close 
resemblance  to  what  is  termed  a  warrant  of  distress  in  the  Act  of  1820, 
now  in  question. 

It  is  certain  that  this  diversity  in  "  the  law  of  the  land"  between 
public  defaulters  and  ordinary  debtors  was  understood  in  this  country, 
and  entered  into  the  legislation  of  the  colonies  and  provinces,  and  more 
especially  of  the  States,  after  the  Declaration  of  Independence  and  be- 
fore the  formation  of  the  Constitution  of  the  United  States.     Not  only 
was  the  process  of  distress  in  nearly  or  quite  universal  use  for  the 
collection  of  taxes,  but  what  was  generally  termed  a  warrant  of  distress, 
running  against  the  body,  goods,  and  chattels  of  defaulting  receivers 
of  public  money,  was  issued  to  some  pubUc  officer,  to  whom  was  c6 m- 
mitted  the  power  to  ascertain  the  amount  of  the  default,  and  by  such 
warrant  proceed  to   collect  it.      Without   a   wearisome   repetition   of 
details,  it  will  be  sufficient  to  give  one  section  from  the  Massachusetts 
Act  of  1786  :  ''  That  if  any  constable  or  collector,  to  whom  any  tax  or 
assessment  shall  be  committed  to  collect,  shall  be  remiss  and  negligent 
of  his  duty,  in  not  levying  and  paying  unto  the  treasurer  and  receiver- 
general  such  sum  or  sums  of  money  as  he  shall  from  time  to  time  have 
received,  and  as  ought  by  him  to  have  been  paid  within  the  respective 
time  set  and  limited  by  the  assessor's  warrant,  pursuant  to  law,  the 
treasurer  and  receiyer-general  is  hereby  empowered,  after  the  expira- 
tion of  the  time  so  set,  by  warrant  under  his  hand  and  seal,  directed 
to  the  sheriff  or  his  deputy,  to  cause  such  sum  and  sums  of  money  to 
be  levied  by  distress  and  sale  of  such  deficient  constable  or  collector's 
estate,  real  and  personal,  returning  the  overplus,  if  any  there  be  ;    and, 
for  want  of  such  estate,  to  take  the  body  of  such  constable  or  collector, 
and  imprison  him  until  he  shall  pay  the   same;  which   warrant   the 
sheriff  or  his  deputy  is  hereby  empowered   and  required  to  execute 
accordingly."      Then    follows  another  provision,   that  if  the  deficient 
sum  shall  not  be  made  by  the  first  warrant,  another  shall  issue  against 
the  town ;  and  if  its  proper  authorities  shall  fail  to  take  the  prescribed 
means  to  raise  and  pay  the  same,  a  like  warrant  of  distress  shall  go 
against  the  estates  and  bodies  of  the  assessors  of  such  town.     Laws  of 
Massachusetts,   vol.  i.  p.  266.      Provisions   not  distinguishable  from 
these  in  principle  may  be  found  in  the  Acts  of  Connecticut,  Reyision 
of  1784,  p.  198;  of  Pennsylvania,  1782,  2  Laws  of  Penn.  13;  of  South 
Carolina,   1788,  5  Stats,  of  S.  C.  55;  New  York,   1788,  1  Jones  & 
Varick's  Laws,  34  ;  see  also  1  Henning's  Stats,  of  Virginia,  319,  343  ; 
12  Ibid.  562  ;  Laws  of  Vermont,  1797,  1800,  340.     Since  the  formation 
of  the  Constitution  of  tlie   United  States,  other  States   have   passed 
similar  laws.     See  7  Louis.  An.   R.   192.     Congress,    from   an    early 
period,  and  in  repeated  instances,  has  legislated  in  a  similar  manner. 
By  the  fifteenth  section  of  the  "Act  to  lay  and  collect  a  direct  tax 


CHAP.  IV.]  MURRAY   V.    HOBOKEN    LAND,   ETC.    CO.  605 

within  the  United  States,"  of  Jul}-  14,  1798,  the  supervisor  of  each 
district  was  authorized  and  required  to  issue  a  warrant  of  distress 
against  an3'  delinquent  collector  and  his  sureties,  to  be  levied  upon  the 
goods  and  chattels,  and  for  want  thereof  upon  the  body  of  such  col- 
lector ;  and,  failing  of  satisfaction  thereby',  upon  the  goods  and  chat- 
tels of  the  sureties.  1  Stats,  at  Large,  602.  And  again,  in  1813,  3 
Stats,  at  Large,  33,  §  28,  and  1815,  3  Stats,  at  Large,  177,  §  33,  the 
comptroller  of  the  treasury-  was  empowered  to  issue  a  similar  warrant 
against  collectors  of  the  customs  and  their  sureties.  This  legislative 
construction  of  the  Constitution,  commencing  so  earl}-  in  the  govern- 
ment, when  the  first  occasion  for  this  manner  of  proceeding  arose, 
continued  throughout  its  existence,  and  repeatedh"  acted  on  b}-  the  judici- 
ary' and  the  executive,  is  entitled  to  no  inconsiderable  weight  upon  the 
question  whether  the  proceeding  adopted  by  it  was  "due  process  of 
law."  Prigg  v.  Pemisylvania ,  16  Pet.  621  ;  United  States  v.  N'ourse, 
9  Pet.  8  ;  Randolph's  Case,  2  Brock.  447  ;  Noai'se's  Case,  4  Cranch,  C. 
C.  R.  151 ;  BullocWs  Case,  cited  6  Pet.  485,  note. 

Tested  b}-  the  common  and  statute  law  of  England  prior  to  the  emi- 
gration of  our  ancestors,  and  by  the  laws  of  many  of  the  States  at  the 
time  of  the  adoption  of  this  amendment,  the  proceedings  authorized  bj- 
the  Act  of  1820  cannot  be  denied  to  be  due  process  of  law,  when 
applied  to  the  ascertainment  and  recover}'^  of  balances  due  to  the 
government  from  a  collector  of  customs,  unless  there  exists  in  the 
Constitution  some  other  provision  which  restrains  Congress  from  author- 
izing such  proceedings.  For,  though  "due  process  of  law"  generall}' 
implies  and  includes,  actor,  reus,  judex,  regular  allegations,  opportunity- 
to  answer,  and  a  trial  according  to  some  settled  course  of  judicial  pro- 
ceedings (2  Inst.  47,  50 ;  IloJce  v.  Henderson,  4  Dev.  N.  C.  Rep.  15  ; 
Taylor  v.  Porter,  4  Hill,  146;  Van  Zandt  v.  Waddel,  2  Yerger,  260 ; 
State  Bank  v.  Cooper,  Ibid.  599  ;  Jones's  Heirs  v.  Perry,  10  Ibid.  59  ; 
Greenev.  Briggs,  1  Curtis,  311),  yet,  this  is  not  universally  true.  There 
may  be,  and  we  have  seen  that  there  are,  cases,  under  the  law  of  Eng- 
land after  Magna  Charta,  and  as  it  was  brought  to  this  countrj-  and 
acted  on  here,  in  which  process,  in  its  nature  final,  issues  against  the 
body,  lands,  and  goods  of  certain  public  debtors  without  an}'  such  trial ; 
and  this  brings  us  to  the  question,  whether  those  provisions  of  the  Con- 
stitution which  relate  to  tlie  judicial  power  are  incompatible  with  these 
proceedings  ? 

That  the  auditing  of  the  accounts  of  a  receiver  of  public  mone3's 
may  be,  in  an  enlarged  sense,  a  judicial  act,  must  be  admitted.  So  are 
all  those  administrative  duties  the  performance  of  which  involves  aa 
inquiry  into  the  existence  of  facts  and  the  application  to  them  of  rules 
of  law.  In  this  sense  the  act  of  the  President  in  calling  out  the  militia 
under  the  Act  of  1795,  12  \Yheat.  19,  or  of  a  commissioner  who  makes 
a  certificate  for  the  extradition  of  a  criminal,  under  a  treaty,  is  judicial. 
But  it  is  not  sufficient  to  bring  such  matters  under  the  judicial  power, 
that  they  involve  the  exercise  of  judgment  upon  law  and  fact.     United 


G06  MURRAY   V.    HOBOKEN    LAND,   ETC.    CO.  [ciIAP.  IV. 

States  V.  Ferreira,  13  How.  40.  It  is  neccssaiy  to  go  further,  and  show 
not  only  tluit  the  adjustment  of  tlie  balances  due  from  accounting 
officers  may  be,  but  from  their  nature  must  be,  controversies  to  which 
the  United  States  is  a  party,  witliin  the  meaning  of  the  second  section 
of  the  third  article  of  the  Constitution.  AVe  do  not  doubt  the  power 
of  Congress  to  provide  by  law  that  such  a  question  shall  form  the 
subject-matter  of  a  suit  in  which  the  judicial  power  can  be  exerted. 
The  Act  of  1820  makes  such  a  provision  for  reviewing  the  decision  of 
the  accounting  officers  of  the  treasury.  But,  until  reviewed,  it  is  final 
and  binding ;  and  the  question  is,  whisther  its  subject-matter  is  neces- 
saril}',  and  without  regard  to  the  consent  of  Congress,  a  judicial  con- 
troversy.    And  we  are  of  opinion  it  is  not. 

Among  the  legislative  powers  of  Congress  are  -the  powers  "to  la}'  and 
collect  taxes,  duties,  imposts,  and  excises,  to  pay  the  debts,  and  provide 
for  the  common  defence  and  welfare  of  the  United  States ;  to  raise  and 
support  armies  ;  to  provide  and  maintain  a  nav^' ;  and  to  make  all  laws 
which  may  be  necessary  and  proper  for  carrying  into  execution  those 
powers."  "What  officers  should  be  appointed  to  collect  the  revenue  thus 
authorized  to  be  raised,  and  to  disburse  it  in  payment  of  the  debts  of  the 
United  States  ;  what  duties  should  be  I'eqnired  of  them  ;  when  and  bow, 
and  to  whom  they  should  account,  and  what  securit}'  they  should  furnish, 
and  to  what  remedies  they  should  be  subjected  to  enforce  the  proper  dis- 
charge of  their  duties,  Congress  was  to  determine.  In  the  exercise  of 
their  powers,  they  have  required  collectors  of  customs  to  be  appointed; 
made  it  incumbent  on  them  to  account,  from  time  to  time,  wdth  cer- 
tain officers  of  the  treasury  department,  and  to  furnish  sureties,  b}' 
bond,  for  the  payment  of  all  balances  of  the  public  money  which  may 
become  due  from  them.  And  by  the  Act  of  1820,  now  in  question, 
they  have  undertaken  to  provide  summary  means  to  compel  these 
officers  —  and  in  case  of  their  default,  their  sureties  —  to  pa}'  such 
balances  of  the  public  money  as  may  be  in  their  hands. 

The  power  to  collect  and  disburse  revenue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  that  power  into  effect, 
includes  all  known  and  appropriate  means  of  effectually  collecting  and 
disbursing  that  revenue,  unless  some  such  means  should  be  forbidden 
in  some  other  part  of  the  Constitution.  The  power  has  not  been  ex- 
hausted by  the  receipt  of  the  money  by  the  collector.  Its  purpose  is 
to  raise  money  and  use  it  in  payment  of  the  debts  of  the  government ; 
and,  whoever  may  have  possession  of  the  public  money,  until  it  is 
actually  disbursed,  the  power  to  use  those  known  and  appropriate 
means  to  secure  its  due  application  continues. 

As  we  have  already  shown,  the  means  provided  b}'  the  Act  of  1820, 
do  not  differ  in  principle  from  those  emploj-ed  in  England  from  remote 
antiquity  —  and  in  many  of  the  States,  so  far  as  we  know  without 
objection  —  for  this  purpose,  at  the  time  the  Constitution  was  formed. 
It  may  be  added,  that  probably  there  are  few  governments  which  do 
or  can  permit  their  claims  for  public  taxes,  either  on  the  citizen  or  the 


CHAP.  IV.]  MUREAY    V.    HOBOKEN    LAND,    ETC.    CO.  607 

officer  employed  for  their  collection  or  disbursement,  to  become  subjects 
of  judicial  controversy,  according  to  the  course  of  the  law  of  the  hind. 
Imperative  necessit}'  has  forced  a  distinction  between  such  claims  and 
all  others,  which  has  sometimes  been  carried  out  by  summary  methods 
of  proceeding,  and  sometimes  by  systems  of  fines  and  penalties,  but 
always  in  some  wa^'  observed  and  yielded  to. 

It  is  true  that  in  England  all  these  proceedings  were  had  in  what  is 
denominated  the  Court  of  E^xchequer,  in  which  Lord  Coke  says,  4  Inst. 
115,  the  barons  are  the  sovereign  auditors  of  the  kingdom.  But  the 
barons  exercise  in  person  no  judicial  power  in  auditing  accounts,  and 
it  is  necessary  to  remember  that  the  Exchequer  includes  two  distinct  or- 
ganizations, one  of  which  lias  charge  of  the  revenues  of  the  Crown,  and 
tlje  other  has  long  been  in  fact,  and  now  is  for  all  purposes,  one  of  the 
judicial  courts  of  the  kingdom,  whose  proceedings  are  and  have  been 
as  distinct,  in  most  respects,  from  those  of  the  revenue  side  of  the  Ex- 
chequer, as  the  proceedings  of  the  Circuit  Court  of  this  district  are 
from  those  of  the  treasury  ;  and  it  would  be  an  unwarrantable  assump- 
tion to  conclude  that,  because  the  accounts  of  receivers  of  revenue 
were  settled  in  what  was  denominated  the  Court  of  P^xchequer,  they 
were  judicial  controversies  between  the  king  and  his  sui)jects,  according 
to  the  ordinary  course  of  the  common  law  or  equit}'.  The  fact,  as  we 
have  already  seen,  was  otherwise. 

It  was  strongly  urged  by  the  plaintiff's  counsel,  that  though  the 
government  miglit  have  the  rightful  power  to  provide  a  summary 
remedy  for  the  recovery  of  its  public  dues,  aside  from  an}'  exercise  of 
tlie  judicial  power,  yet  it  had  not  done  so  in  this  instance.  That  it  had 
enabled  the  debtor  to  appl}'  to  the  judicial  power,  and  having  thus 
brought  the  subject-matter  under  its  cognizance,  it  was  not  for  the 
government  to  say  that  the  subject-matter  was  not  within  the  judicial 
power.  That  if  it  were  not  in  its  nature  a  judicial  controversy,  Con- 
gress could  not  make  it  such,  nor  give  jurisdiction  over  it  to  the  district 
courts.  In  short,  the  argument  is,  that  if  this  were  not,  in  its  nature, 
a  judicial  controversy,  Congress  could  not  have  conferred  on  the  district 
court  power  to  determine  it  upon  a  bill  filed  by  the  collector.  If  it 
be  such  a  controversy,  then  it  is  subject  to  the  judicial  power  alone  ; 
and  the  fact  that  Congress  has  enabled  the  district  court  to  pass  upon 
it,  is  conclusive  evidence  that  it  is  a  judicial  controvers}'. 

We  cannot  admit  the  correctness  of  the  last  position.  If  we  were 
of  opinion  that  this  subject-matter  cannot  be  the  subject  of  a  judicial 
controversy,  and  that,  consequently,  it  cannot  be  made  a  subject  of 
judicial  cognizance,  the  consequence  would  be,  that  the  attempt  to 
bring  it  under  the  jurisdiction  of  a  court  of  the  United  States  would  be 
ineffectual.  But  the  previous  proceedings  of  the  executive  depart- 
ment would  not  necessarily  be  affected  thereby.  They  might  be  final, 
instead  of  being  subject  to  judicial  review. 

But  the  argument  leaves  out  of  view  an  essential  element  in  the  case, 
and  also  assumes  something  which  cannot  be  admitted. 


608  MURRAY   V.   IIOBOKEN  LAND,   ETC.   CO.  [CHAP.  IV. 

It  assumes  that  the  entire  sul»jcet-mattor  is  or  is  not.  in  ever}-  mode 
of  presentation,  a  judicial  controvers}',  essentiall}' and  in  its  own  nature, 
aside  from  tlie  will  of  Congress  to  permit  it  to  be  so  ;  and  it  loaves  out 
of  view  the  fact  that  tlie  United  States  is  a  part3\ 

It  is  necessary  to  take  into  view  some  settled  rules. 

Tliongh,  general!}-,  both  public  and  private  wrongs  are  redressed 
through  judicial  action,  there  are  more  summary  extra-judicial  remedies 
for  both.  An  instance  of  extra-judicial  redress  of  a  private  wrong  is, 
the  recapture  of  goods  by  their  lawful  owner ;  of  a  public  wrong,  by 
a  private  person,  is  the  abatement  of  a  public  nuisance  ;  and  the  re- 
covery of  public  dues  by  a  summary  process  of  distress,  issued  by 
some  public  officer  authorized  by  law,  is  an  instance  of  redress  of  a 
particular  kind  of  public  wrong,  by  the  act  of  the  public  through  its 
authorized  agents.  There  is,  however,  an  important  distinction  be- 
tween these.  Though  a  private  person  may  retake  his  property,  or 
abate  a  nuisance,  he  is  directly  responsible  for  his  acts  to  the  proper 
judicial  tribunals.  His  authority  to  do  these  acts  depends  not  merely 
on  the  law,  but  upon  the  existence  of  such  facts  as  are,  in  point  of 
law,  sufficient  to  constitute  that  authority  ;  and  he  may  be  required,  by 
an  action  at  law,  to  prove  those  facts;  but  a  public  agent,  who  acts 
pursuant  to  the  command  of  a  legal  precept,  can  justify  his  act  by  the 
production  of  such  precept.  He  cannot  be  made  responsible  in  a 
judicial  tribunal  for  obeying  the  lawful  command  of  the  government : 
and  the  government  itself,  which  gave  the  command,  cannot  be  sued 
without  its  ow-n  consent. 

At  the  same  time  there  can  be  no  doubt  that  the  mere  question, 
■whether  a  collector  of  the  customs  is  indebted  to  the  United  States, 
may  be  one  of  judicial  cognizance.  It  is  competent  for  the  United 
States  to  sue  any  of  its  debtors  in  a  court  of  law.  It  is  equally  clear 
that  the  United  States  may  consent  to  be  sued,  and  may  yield  this 
consent  upon  such  terms  and  under  such  restrictions  as  it  may  think 
just.  Though  both  the  marshal  and  the  government  are  exempt  from 
suit,  for  anything  done  by  the  former  in  obedience  to  legal  process,  still, 
Congress  may  provide  by  law,  that  both,  or  either,'  shall,  in  a  particu- 
lar class  of  cases,  and  under  such  restrictions  as  they  may  think  proper 
to  impose,  come  into  a  court  of  law  or  equity  and  abide  by  its  deter- 
mination. The  United  States  may  thus  place  the  government  upon  the 
same  ground  which  is  occupied  by  private  persons  who  proceed  to  take 
extra-judicial  remedies  for  their  wrongs,  and  they  may  do  so  to  such 
extent,  and  with  such  restrictions,  as  may  be  thought  fit. 

When,  therefore,  the  Act  of  1820  enacts,  that  after  the  levy  of  the 
distress  warrant  has  been  begun,  the  collector  may  bring  before  a  dis- 
trict court  the  question,  whether  he  is  indebted  as  recited  in  the 
warrant,  it  simply  waives  a  privilege  which  belongs  to  the  government, 
and  consents  to  make  the  legality  of  its  future  proceedings  dependent 
on  the  judgment  of  the  court ;  as  we  have  already  stated  in  case  of  a 
private  person,  every  fact  upon  which  the  legality  of  the  extra-judicial 


CHAP.  IV.]  MUKIt.VY   V.    HOBOKEN    LAND,   ETC.    CO.  609- 

remcd}'  depends  may  be  drawn  in  question  b\-  a  suit  against  him.  The 
United  States  consents  that  this  fact  of  indebtedness  maj-  bo  drawn 
in  question  b}-  a  suit  against  them.  Tiiough  they  might  have  withheld 
their  consent,  we  thinli  that,  by  granting  it,  nothing  wliich  may  not 
be  a  subject  of  judicial  cognizance  i;^;  brought  before  the  court. 

To  avoid  misconstruction  upon  so  grave  a  subject,  we  think  it  proper 
to  state  that  we  do  not  consider  Congress  can  either  withdraw  from 
judicial  cognizance  an}'  matter  which,  from  its  nature,  is  the  subject 
of  a  suit  at  the  common  law,  or  in  equit}',  or  admiralty  ;  nor,  on  the 
other  hand,  can  it  bring  under  the  judicial  power  a  matter  which,  from 
its  nature,  is  not  a  subject  for  judicial  determination.  At  the  same 
time  there  are  matters,  involving  public  rights,  which  may  be  presented 
in  such  form  that  the  judicial  power  is  capable  of  acting  on  them,  and 
which  are  susceptible  of  judicial  determination,  but  which  Congress 
may  or  may  not  bring  within  the  cognizance  of  the  courts  of  the  United 
States,  as  it  may  deem  proper.  Equitable  claims  to  land  b}'  the  inhab- 
itants of  ceded  territories  form  a  striking  instance  of  such  a  class  of 
cases;  and  as  it  depends  upon  the  will  of  Congress  whether  a  remedy 
in  the  courts  shall  be  allowed  at  all,  in  such  cases,  they  may  regulate  it 
and  prescribe  such  rules  of  determination  as  they  may  think  just  and 
needful.  Thus  it  has  been  repeatedh*  decided  in  this  class  of  cases, 
that  upon  their  trial  the  acts  of  executive  officers,  done  under  tlie 
authority  of  Congress,  were  conclusive,  eitlier  upon  particular  facts 
involved  in  the  inquiry  or  upon  the  whole  title.     Foleij  v.  Harrison, 

15  How.  433  ;  Burgess  v.  Gray,  16  How.  48  ;  v.  The  Minnesota 

Mining  Company  at  the  present  term. 

It  is  true,  also,  that  even  in  a  suit  between  private  persons  to  tr}'  a 
question  of  private  right,  the  action  of  the  executive  power,  upon  a 
matter  committed  to  its  determination  b}'  the  Constitution  and  laws,  is 
conclusive.  Luther  v.  Borden^  7  How.  1  ;  Doe  v.  Braden^  16  How. 
635. 

To  apply  these  principles  to  the  case  before  us,  we  sa}'  that,  though 
a  suit  may  be  brought  against  the  marsh.al  for  seizing  property  under 
such  a  warrant  of  distress,  and  he  may  be  put  to  show  his  justification  ; 
3'et  the  action  of  the  executive  power  in  issuing  the  warrant,  pursuant 
to  the  Act  of  1820,  passed  under  the  powers  to  collect  and  disburse  the 
revenue  granted  by  the  Constitution,  is  conclusive  evidence  of  the  facts 
recited  in  it,  and  of  the  authority  to  make  tlie  levy  ;  that  though  no 
suit  can  be  brought  against  the  United  States  without  the  consent  of 
Congress,  yet  Congress  may  consent  to  have  a  suit  brought,  to  try 
the  question  whether  the  collector  be  indebted,  that  being  a  subject 
capable  of  judicial  determination,  and  may  empower  a  court  to  act  on 
that  determination,  and  restrain  the  lev}'  of  the  warrant  of  distress 
within  tlie  limits  of  the  debt  judiciall}'  found  to  exist. 

It  was  further  urged  that,  by  thus  subjecting  the  proceeding  to  tlie 
determination  of  a  court,  it  did  conclusively  appear  that  there  was  no 
such  necessity  for  a  summary  remedy,  by  the  action  of  the  executive 
VOL.  I.  —  39 


610  DAVIDSON   V.   NEW   ORLEANS.  [CIIAP.  IV. 

power,  as  was  essential  to  enable  Congress  to  autlioi'ize  this  mode  of 
proceeding. 

But  it  seems  to  us  that  the  just  inference  from  the  entire  law  is,  that 
there  was  such  a  necessity  for  the  warrant  and  the  connncnceraent  of 
the  levy,  but  not  for  its  completion,  if  the  collector  should  interpose, 
and  file  his  bill  and  give  security.  The  provision  that  he  may  file  his 
bill  and  give  security,  and  thus  arrest  the  summary  proceedings,  only 
proves  tliat  Congress  thought  it  not  necessary  to  pursue  them,  after 
such  security  should  be  given,  until  a  decision  should  be  made  by  the 
court.  It  has  no  tendency  to  prove  they  were  not,  in  the  judgment  of 
Congress,  of  the  highest  necessity  under  all  other  circumstances ;  and 
of  this  necessity  Congress  alone  is  the  judge. 

The  remaining  objection  to  this  warrant  is,  that  it  was  issued  without 
the  support  of  an  oath  or  affirmation,  and  so  was  forbidden  by  the 
fourth  article  of  the  amendments  of  the  Constitution.  But  this  article 
has  no  reference  to  civil  proceedings  for  the  recover}-  of  debts,  of  which 
a  search-warrant  is  not  made  part.  The  process,  in  this  case,  is 
termed,  in  the  Act  of  Congress,  a  warrant  of  distress.  The  name  be- 
stowed upon  it  cannot  affect  its  constitutional  vahdity.  In  substance, 
it  is  an  extent  authorizing  a  levy  for  the  satisfaction  of  a  debt ;  and 
as  no  other  authority  is  conferred,  to  make  searches  or  seizures,  than 
is  ordinarily  embraced  in  every  execution  issued  upon  a  recognizance, 
or  a  stipulation  in  the  admiralty,  we  are  of  opinion  it  was  not  invalid 
for  this  cause. ^  .   .   . 


DAVIDSON  V.   NEW  ORLEANS. 

Supreme  Court  of  the  United  States.      1877. 

[96  U.  S.  97.] 

Error  to  the  Supreme  Court  of  the  State  of  Louisiana. 

On  the  7th  of  December,  1871,  the  petition  of  the  city  of  New  Or- 
leans and  the  administrators  thereof  was  filed  in  the  Seventh  District 
Court  for  the  parish  of  Orleans,  setting  forth  an  assessment  on  certain 
real  estate,  made  under  the  statutes  of  Louisiana,  for  draining  the  swamp 
lands  within  the  parishes  of  Carroll  and  Orleans  ;  and  asking  that  the 
assessment  should  be  homologated  by  the  judgment  of  the  court.  Tiie 
estate  of  John  Davidson  was  assessed  for  various  parcels  in  different 
places  for  about  650,000.  His  widow  and  testamentary  executrix  ap- 
peared in  that  court  and  filed  exceptions  to  the  assessment ;  and  the 
court  refused  the  order  of  homologation,  and  set  aside  the  entire  assess- 
ment, with  leave  to  the  plaintiflTs  to  present  a  new  tableau. 

On  appeal  from  this  decree,  the  Supreme  Court  of  Louisiana  reversed 
it,  and  ordered  the  dismissal  of  the  oppositions,  and  decreed  that  the 

1  And  so  Palmer  v.  McMahon,  133  U.  S.  660,  669  (1889).  —  Ed. 


CHAP.  IV.]  DAVIDSON    V.   NEW   OKLEANS.  611 

assessment-roll  presented  be  approved  and  homologated,  and  that  tlie 
approval  and  homologation  so  ordered  should  operate  as  a  judgment 
against  the  property  described  in  the  assessment-roll,  and  also  against 
the  owner  or  owners  thereof.  Mrs.  Davidson  then  sued  out  the  writ  of 
error  b}'  which  this  judgment  is  now  brought  here  for  review. 

31)'.  James  D.  Hill  and  Mr.  Jolin  1).  McFherson,  for  the  plaintiff  in 
error. 

3Ir.  Philip  PhilUps^  contra. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  objections  raised  in  the  State  courts  to  the  assessment  were  nu- 
merous and  varied,  including  constitutional  objections  to  the  statute 
under  which  the  assessment  was  made,  and  alleged  departures  from  the 
requirements  of  the  statute  itself.  And  although  counsel  for  the  plain- 
tiff in  error  concede,  in  the  first  sentence  of  their  brief,  that  the  only 
Federal  question  is,  whether  the  judgment  is  not  in  violation  of  that 
provision  of  tiie  Constitution  wliich  declares  that  "•  no  State  shall  de- 
prive an}'  person  of  life,  liberty,  or  property  without  due  process  of 
law,"  the  argument  seems  to  suppose  that  this  court  can  correct  an}'' 
other  eri'or  w^hich  may  be  found  in  the  record. 

1.  It  is  said  that  the  legislature  had  no  right  to  organize  a  private 
corporation  to  do  the  work,  and,  by  statute,  to  fix  the  price  at  which 
the  work  should  be  done. 

2.  That  the  price  so  fixed  is  exorbitant. 

3.  That  there  may  be  a  surplus  collected  under  the  assessment  be- 
yond what  is  needed  for  the  work,  which  must  in  that  event  go  into  the 
city  treasuiy. 

Can  it  be  necessary  to  sa}',  that  if  the  work  was  one  which  the  State 
had  authority  to  do,  and  to  pay  for  it  by  assessments  on  the  propert}' 
interested,  that  on  such  questions  of  method  and  detail  as  these  the  ex- 
ercise of  the  power  is  not  regulated  or  controlled  by  the  Constitution  of 
the  United  States  ? 

Of  a  similar  character  is  the  objection  much  insisted  on,  that,  under 
the  statute,  the  assessment  is  actuall}'  made  before,  instead  of  after,  the 
work  is  done.  As  a  question  of  wisdom, — of  judicious  economy,  —  it 
would  seem  better  in  this,  as  in  otlier  works  which  require  the  expendi- 
ture of  large  sums  of  mone}',  to  secure  the  means  of  payment  before 
becoming  involved  in  the  enterprise  ;  and  if  this  is  not  due  process  of 
law,  it  ought  to  be. 

There  are  other  objections  urged  by  counsel  wdiich  may  be  referred  to 
hereafter,  but  we  pause  here  to  consider  a  moment  the  clause  of  the 
Constitution  relied  on  b}^  plaintiff'  in  error.  It  is  part  of  sect.  1  of 
the  Fourteenth  Amendment.  The  section  consists  of  two  sentences. 
The  first  defines  citizenship  of  the  States  and  of  the  United  States.  The 
next  reads  as  follows  :  — 

"No  State  shall  make  or  enforce  an}-  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property  without  due  pro- 


012  DAVIDSON   V.    NEW    ORLEANS.  [CHAP.  IV. 

cess  of  law,  nor  den}'  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  hiw." 

The  section  was  the  subject  of  very  full  and  mature  consideration  in 
SlaugJiter-Honse  Cases,  IG  Wall.  36.  In  those  cases,  an  Act  of  the 
Louisiana  Legislature,  whicli  litid  granted  to  a  corporation  created  for 
the  purpose  the  exclusive  right  to  erect  and  maintain  a  building  for  the 
slaughter  of  live  animals  within  the  cit\-,  was  assailed  as  being  in  con- 
flict with  this  section.  The  right  of  the  State  to  use  a  private  corpora- 
tion and  confer  upon  it  the  necessary  powers  to  carry  into  effect  sanitary 
regulations  was  affirmed,  and  the  decision  is  applicable  to  a  similar 
objection  in  the  case  now  before  us.  The  argument  of  counsel  and  the 
opinion  of  the  court  in  those  cases  were  mainly  directed  to  that  part  of 
the  section  which  related  to  the  privileges  and  immunities  of  citizens ; 
and,  as  the  court  said  in  the  opinion,  the  argument  was  not  much 
pressed,  that  the  statute  deprived  the  butchers  of  their  property  without 
due  process  of  law.  The  court  held  that  the  provision  was  inapplicable 
to  the  case. 

The  prohibition  against  depriving  the  citizen  or  subject  of  his  life, 
liberty,  or  propert}-  without  due  process  of  law,  is  not  new  in  the  con- 
stitutional history  of  the  English  race.  It  is  not  new  in  the  constitu- 
tional history  of  this  countrj',  and  it  was  not  new  in  the  Constitution  of 
the  United  States  when  it  became  a  part  of  the  Fourteenth  Amend- 
ment, in  the  year  1866. 

The  equivalent  of  the  phrase  "  due  process  of  law,"  according  to  Lord 
Coke,  is  found  in  the  words  "  law  of  the  land,"  in  the  Great  Charter, 
in  connection  with  the  writ  of  habeas  corpses,  the  trial  by  jur}',  and  other 
guarantees  of  the  rights  of  the  subject  against  the  oppression  of  the 
Crown.  In  the  series  of  amendments  to  the  Constitution  of  the  United 
States,  proposed  and  adopted  imraediatel}'  after  the  organization  of  the 
government,  which  were  dictated  b}'  the  jealous}'  of  the  States  as  further 
limitations  upon  the  power  of  the  Federal  government,  it  is  found  in  the 
fifth,  in  connection  with  other  guarantees  of  personal  rights  of  the  same 
character.  Among  these  are  pi'otection  against  prosecutions  for  crimes, 
unless  sanctioned  b}'  a  grand  jury  ;  against  being  twice  tried  for  the 
same  offence ;  against  the  accused  being  compelled,  in  a  criminal  case, 
to  testify  against  himself;  and  against  taking  private  propert}'  for  pub- 
lic use  without  just  compensation. 

Most  of  these  provisions,  including  the  one  under  consideration,  either 
in  terms  or  in  substance,  have  been  embodied  in  the  constitutions  of  the 
sevei-al  States,  and  in  one  shape  or  another  have  been  the  subject  of 
judicial  construction. 

It  must  be  confessed,  however,  that  the  constitutional  meaning  or 
value  of  the  phrase  "  due  process  of  law,"  remains  to-day  without  that 
satisfactor}'  precision  of  definition  which  judicial  decisions  have  given  to 
nearly  all  the  other  guarantees  of  personal  rights  found  in  the  constitu- 
tions of  the  several  States  and  of  the  United  States. 

It  is  easy  to  see  that  when  the  great  barons  of  England  wrung  from 


CHAP.  IV.]  DAVIDSON    V.    NEW   ORLEANS.  613 

King  John,  at  the  point  of  the  sword,  the  concession  that  neither  their 
lives  nor  tlieir  property  should  be  disposed  of  bj'  tlie  Crown,  except  as 
provided  by  the  law  of  the  land,  they  meant  by  "  law  of  the  land"  the 
ancient  and  customary  laws  of  the  English  people,  or  laws  enacted  by 
the  Parliament  of  which  those  barons  were  a  controlling  element.  It 
was  not  in  their  minds,  therefore,  to  protect  themselves  against  the  en- 
actment of  laws  b}-  the  Parliament  of  England.  But  when,  in  the  year 
of  grace  1866,  there  is  placed  in  the  Constitution  of  the  United  States 
a  declaration  that  "  no  State  shall  deprive  an}-  person  of  life,  liberty,  or 
property  without  due  process  of  law,"  can  a  State  make  anything  due 
process  of  law  which,  by  its  own  legislation,  it  chooses  to  declare  such? 
To  affirm  this  is  to  hold  that  the  prohibition  to  the  States  is  of  no  avail, 
or  has  no  application  where  the  invasion  of  private  rights  is  effected 
under  the  forms  of  State  legislation.  It  seems  to  us  that  a  statute 
which  declares  in  terms,  and  without  more,  that  the  full  and  exclusive 
title  of  a  described  piece  of  land,  which  is  now  in  A.,  shall  be  and  is 
hereby  vested  in  B.,  would,  if  effectual,  deprive  A.  of  his  property 
without  due  process  of  law,  within  the  meaning  of  the  constitutional^  i 
provision.  r^/JJL'kiA 

A  most  exhaustive  iudieial  inquiry  into  the  meaning  of  the  words    ^  ^     , 
'-'•  due  process  of  law,"  as  found  in  the  Fifth  Amendment,  resulted  in  the      |T 
unanimous  decision  of  this  court,  that  the}'  do  not  necessarih'  imply  a  cA-<.?C'Q.  -Vb- 
regular  i)roceeding  in  a  court  of  justice,  or  after  the  manner  of  such  ^/i  ^p.    . 
courts.   Mtirraii's  Lessee  et  al.  v.  Tloboken  Land  and  Lyqjrovement  Co., 
18  How.  272.  .   .  .   [Here  follows  a  statement  of  this  case.]  mu^K.^ 

r    It  is  not  a  little  remarkable,  that  while  this  provision  has  been  in  the  A  ^  ^'I'VA-f  ^ 
Constitution  of  the  United  States,  as  a  restraint  upon  the  authorit}-  of  i     r 
the  Federal  government,  for  nearly-  a  century-,  and  while,  during  all  that  f       ^'^^-^ 
time,  the  manner  in  which  the  powers  of  that  government  have  been  ^^,1,^  ^  ^t^ 


(exercised  has  been  watched  with  jealous}-,  and  subjected  to  the  most 


rigid  criticism  in  all  its  branches,  this  special  limitation  upon  its  powers     k  I'W^'Ia 


has  rarely  been  invoked  in  .the  judicial  forum  or  the  more  enlarged 
theati'e  of  public  discussion./^  But  while  it  has  been  a  part  of  the  Con-  ^  , 

stitution,  as  a  restraint  upon  the  power  of  the  States,  only  a  ver}-  few  ^       ,    A 
3'ears,  the  dockel;  of  this  court  is  crowded  with  cases  in  which  we  ju'e    ^AjuM^ 
asked  to  hold  that  State  courts  and  State  legislatures  have  deprived     ) 
their  own  citizens  of  life,  libert}-,  or  property  without  due  process  of_/    <^^^^^^ 
law.     Tligrejs  here  abundant  evidence  that  there  exists  some  strange    -f'       y 
misconception  of  the  scope  of  this  provision  as  found  in  the  Fourteenth  q 

Amendment.  In  fact,  it  would  seem,  from  the  character  of  many  of  IJi^KfiO 
the  cases  before  us,  and  the  arguments  made  in  them,  tliat  the  clause  //     . 

under  consideration  is  looked  upon  as  a  means  of  bringing  to  the  test  '^'^^^  ^ 
o|jthe  decision  of  this  court  the  abstract  opinions  of  every  unsuccessful  tlvj  I  ^  - 
litigant  in  a  State  court  of  the  justice  of  the  decision  airaiiist  him,  an(3_of    ,-,  > 

the  merits  of  the  legislation  on  wliich  such  a  decision  may  i)e  founded. 
\  If,  there<'ore,  it  were  possible  to  define  what  it  is  for  a  State  to  depjuve  ~  ]AA<^<^^ 
I  a  person  of  life,  libert}-,  or  propertj'  without  due  process  of  law,  in  terras  "tuo^t     i^ 


2  a. 


U^  X^^oW^    OAArt^oA^   /<^/^<Vm  ,  ^^  JU.^<a<^ 


614  DAVIDSOX   V.    NEW   OlILEANS.  [CHAP.  IV. 

which  would  cover  every  cxci-cise  of  power  thus  forbidden  to  the  State, 
uiidjexckide  those  whicli  are  not,  no  more  useful  construction  cou^d  be 
furnished  by  this  or  an}- other  court  to  any  part  of  the  fundamental 
law. 

But,  apart  from  the  imminent  risk  of  a  failure  to  give  any  definition 
which  would  be  at  once  perspicuous,  comprehensive,  and  satisfactor}-, 
there  is  wisdom,  we  think,  in  tlie  ascertaining  of  the  intent  and  applica- 
tion of  such  an  important  phrase  in  the  Federal  Constitution,  by  the 
gradual  process  of  judicial  inclusion  and  exclusion,  as  the  cases  pre- 
sented for  decision  shall  require,  with  the  reasoning  on  which  such  de- 
cisions ma}-  be  founded.  This  court  is,  after  an  experience  of  nearly  a 
century,  still  engaged  in  defining  the  obligation  of  contracts,  the  regula- 
tion of  commerce,  and  other  powers  conferred  on  the  Federal  govern- 
ment, or  limitations  imposed  upon  the  States. 

As  contributing,  to  some  extent,  to  this  mode  of  determining  what 
class  of  cases  do  not  fall  within  its  provision,  we  la}-  down  the  following 
proposition,  as  applicable  to  the  case  before  us :  — 

That  whenever  by  the  laws  of  a  State,  or  by  State  authority,  a  tax,  ^ 
assessment,  servitude,  or  other  burden  is  imposed  upon  property  for  the 
public  use,  whether  it  be  for  the  whole  State  or  of  some  more  limited 
portion  of  the  community,  and  those  laws  provide  for  a  mode  of  confirm- 
ing or  contesting  the  charge  thus  imposed,  in  the  ordinary  courts  of 
justice,  with  such  notice  to  the  person,  or  such  proceeding  in  regard  to 
the  property  as  is  appropriate  to  the  nature  of  the  case,  the  judgment 
in  such  proceedings  cannot  be  said  to  deprive  the  owner  of  his  prop- 
erty without  due  process  of  law,  however  obnoxious  it  may  be  to  other 
objections. 

It  may  violate  some  provision  of  the  State  Constitution  against  un- 
equal taxation  ;  but  the  Federal  Constitution  imposes  no  restraints  on 
the  States  in  that  regard.  If  private  property  be  taken  for  public  uses 
without  just  compensation,  it  must  be  remembered  that,  when  the  Four- 
teenth Amendment  was  adopted,  the  provision  on  that  subject,  in  im- 
mediate juxtaposition  in  the  Fifth  Amendment  with  the  one  we  are 
construing,  was  left  out,  and  this  was  taken.  It  may  possibly  violate 
some  of  those  principles  of  general  constitutional  law,  of  which  we  could 
take  jurisdiction  if  we  were  sitting  in  review  of  a  circuit  court  of  the 
United  States,  as  we  w-ere  in  Loan  Association  v.  TopeJca^  20  Wall. 
655.  But  however  this  may  be,  or  under  whatever  other  clause  of  the 
Federal  Constitution  we  may  review  the  case,  it  is  not  possible  to  hold 
that  a  party  has,  without  due  process  of  law,  been  deprived  of  his  prop- 
erty, when,  as  regards  the  issues  affecting  it,  he  has,  by  the  laws  of  the 
State,  a  fair  trial  in  a  court  of  justice,  according  to  the  modes  of  pro- 
ceeding applicable  to  such  a  case.  Tliis  was  clearly  stated  by  this  court, 
speaking  by  the  Chief  Justice,  in  Kennard  v.  Morgan^  92  U.  S.  480, 
and,  in  substance,  repeated  at  the  present  term,  in  McMillan  v.  Ander- 
son, 95  U.  S.  37. 

This  proposition  covers  the  present  case.    Before  the  assessment  could 


J 


CHAP.  IV.]  DAVIDSON   V.   NEW   ORLEANS.  615 

be  collected,  or  become  effectual,  the  statute  required  that  the  tableau  of 
assessments  should  be  filed  in  the  proper  District  Court  of  the  State ; 
that  personal  service  of  notice,  with  reasonable  time  to  object,  should 
be  served  on  all  owners  who  were  known  jind  within  reach  of  process, 
and  due  advertisement  made  as  to  those  who  were  unknown,  or  could 
not  be  found.  This  was  complied  with  ;  and  the  party  complaining 
here  appeared,  and  had  a  full  and  fair  hearing  in  the  court  of  the  first 
instance,  and  afterwards  in  the  Supreme  Court.  If  this  be  not  due  pro- 
cess of  law,  then  the  words  can  have  no  definite  meaning  as  used  in  the 
Constitution. 

One  or  two  errors  assigned,  and  not  mentioned  in  the  earlier  part  of 
this  opinion,  deserve  a  word  or  two. 

It  is  said  that  the  plaintiff's  property  had  previously  been  assessed 
for  the  same  purpose,  and  the  assessment  paid.  If  this  be  meant  to 
deny  the  riaht  of  the  State  to  tax  or  assess  ])roperty  twice  for  the  same 
purpose,  we  know  of  no  provision  in  the  Federal  Constitution  which 
forbids  this,  or  which  forbids  unequal  taxation  by  the  States.  If  the 
Act  under  which  the  former  assessment  was  made  is  relied  on  as  a  con- 
tract against  further  assessments  for  the  same  purpose,  we  concur  with 
the  Supreme  Court  of  Louisiana  in  being  unable  to  discover  such  a 
contract. 

It  is  also  said  that  part  of  the  property  of  plaintiff  which  was  assessed 
is  not  benefited  by  the  improvement.  This  is  a  matter  of  detail  with 
which  this  court  cannot  interfere,  if  it  were  clearly  so  ;  but  it  is  hard  to 
fix  a  limit  within  these  two  parishes  where  propert}-  would  not  be  bene- 
fited by  the  removal  of  the  swamps  and  marshes  which  are  within  their 
bounds. 

And  lastly,  and  most  strongly,  it  is  urged  that  the  court  rendered  a 
personal  judgment  against  the  owner  for  the  amount  of  the  tax,  while 
it  also  made  it  a  charge  upon  the  land.  It  is  urged  with  force,  —  and 
some  highly  respectable  authorities  are  cited  to  support  the  proposition, 
—  that  while  for  such  improvements  as  this  a  part,  or  even  the  whole, 
of  a  man's  propert}'  connected  with  the  improvement  may  be  taken,  no 
personal  liabilit}'  can  be  imposed  on  him  in  regard  to  it.  If  this  were  a 
proposition  coming  before  us  sitting  in  a  State  court,  or,  perhaps,  in  a 
circuit  court  of  the  United  States,  we  might  be  called  upon  to  decide 
it ;  but  we  are  unable  to  see  tliat  any  of  the  provisions  of  the  Federal 
Constitution  authorizes  us  to  reverse  the  judgment  of  a  State  court  on 
that  question.  It  is  not  one  which  is  involved  in  the  phrase  '•  due 
process  of  law,"  and  none  other  is  called  to  our  attention  in  the  present 
case. 

As  there  is  no  error  in  the  judgment  of  the  Supreme  Court  of  Louisi- 
ana, of  which  this  court  has  cognizance,  it  is  Affirmed. 

Mr.  Justice  Bradley  gave  a  concurring  opinion,  in  which  he  said: 
"  I  think  it  [the  opinion  of  the  court]  narrows  the  scope  of  inqnir^-  as 
to  what  is  due  process  of  law  more  than  it  should  do.  ...  I  think, 


616  HURTADO   V.   CALIFORNIA.  [CHAP.  IV. 

therefore,  we  are  entitled,  under  the  Fourteenth  Amendment,  not  only 
to  see  that  there  is  some  process  of  law,  but  '  due  process  of  law,' 
proviik'd  by  the  State  law  when  a  citizen  is  deprived  of  his  property  ; 
and  that,  in  judging  wliat  is  'due  process  of  law,'  respect  niust  be  hiiC 
to  the  cause  and  object  of  the  taking,  whether  under  the  taxing  power, 
the  power  of  eminent  domain,  or  tlie  power  of  assessment  for  local  im- 
provements, or  none  of  these  :  and  if  found  to  be  suitable  or  admissible 
in  the  special  case,  it  will  be  adjudged  to  be  '  due  process  of  law ; ' 
but  if  found  to  be  arbitrary,  oppressive,  and  unjust,  it  may  be  declared 
to  be  not  '  due  process  of  law.'  Such  an  examination  may  be  made 
without  interfering  with  that  lai;ge_  discretion  which  every  legislative 
power  has  of  making  wide  modifications  in  the  forms  of  procedure  in  each 
case,  according  as  the  laws,  habits,  customs,  and  preferences  of  the 
people  of  the  particular  State  may  require." 


\JU  HURTADO   V.  CALIFORNIA. 

.J^jH/'f'^-^-^  ^r  Supreme  Court  of  the  United  States.     1883. 

^-      <;t>^A**l>^^^^  [110  C7.  S.  516.] 

The  Constitution  of  the  State  of  California,  adopted  in  1879,  in 
Article  I.,  section  8,  provides  as  follows:  — 

"Offences  heretofore  required  to  be  prosecuted  b}' indictment  shall 

^*^'*^         be  prosecuted  by  information,  after  examination  and  commitment  by 

a  magistrate,  or  by  indictment,  with  or  without  such  examination  and 

commitment  as  may  be  prescribed  by  law.    A  grand  jury  shall  be  drawn 

and  summoned  at  least  once  a  year  in  each  county."  .   .  . 

[Hurtado  was  charged  with  murder,  by  an  information  filed  by  the 
District  Attorney  of  Sacramento  County  in  the  local  court,  in  Februar}', 
1882  ;  on  his  arraignment  pleaded  not  guilty  ;  and  was  tried  by  jury, 
found  guilty,  and  sentenced  to  be  hanged.  He  filed  objections  to  the 
execution  of  this  judgment,  to  the  effect,  among  other  things,  that  the 
proceeding,  upon  information,  was  contrary  to  the  Fourteenth  Amend- 
ment. These  olijections  were  overruled  by  the  local  court  and,  on  ap- 
peal, by  the  Supreme  Court  of  California ;  and  they  were  now  brought 
up,  on  error,  to  the  Supreme  Court  of  the  United  States.] 

Mr.  A.  L.  Hart,  for  plaintiff  in  error. 

3Ir.  John  T.  Gary,  for  defendant  in  error. 

Mr.  Justice  Matthews  delivered  the  opinion  of  the  court.  After 
reciting  the  facts  in  the  foregoing  language,  he  continued  :  — 

It  is  claimed  on  behalf  of  the  prisoner  that  the  conviction  and  sen- 
tence are  void,  on  the  ground  that  they  are  repugnant  to  that  clause  of 
the  Fourteenth  Article  of  Amendment  of  the  Constitution  of  the  United 
States,  which  is  in  these  words  :  — 


CHAP.  IV.]  HUKTADO   V.    CALIFORNIA.  617 

"  Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law." 

The  proposition  of  law  we  are  asked  to  affirm  is  that  an  indictment 
or  presentment  by  a  t^'rand  jury,  as  known  to  the  common  law  of  Eng- 
land, is  essential  to  that  "  due  process  of  law,"  when  applied  to  prose- 
cutions for  felonies,  which  is  secured  and  guaranteed  by  this  provision 
of  the  Con'stitution  of  the  United  States,  and  w^hich  accordingly  it  is 
forbidden  to  the  States  respectively  to  dispense  with  in  the  administra- 
tion of  criminal  law.  .  .  . 

It  is  maintained  on  behalf  of  the  plaintiff  in  error  that  the  phrase 
"due  process  of  law"  is  equivalent  to  "law  of  the  land,"  as  found  in 
the  29th  chapter  of  Magna  Charta ;  that  by  immemorial  usage  it  has 
acquired  a  fixed,  definite,  and  technical  meaning  ;  that  it  refers  to  and 
includes,  not  only  the  general  principles  of  public  libert}'  and  private 
right,  which  lie  at  the  foundation  of  all  free  government,  but  the  very 
institutions  which,  venerable  by  time  and  custom,  have  been  tried  by 
experience  and  found  fit  and  necessar\'  for  the  preservation  of  those  prin- 
ciples, and  which,  having  been  the  birthright  and  inheritance  of  every 
English  subject,  crossed  the  Atlantic  with  the  colonists  and  were  trans- 
planted and  established  in  the  fundamental  laws  of  the  State  ;  that,  hav- 
ing been  originally  introduced  into  the  Constitution  of  the  United  States 
as  a  limitation  upon  the  powers  of  the  government,  brought  into  being 
by  that  instrument,  it  has  now  been  added  as  an  additional  securit}-  to 
the  individual  against  oppression  by  the  States  themselves  ;  that  one 
of  these  institutions  is  that  of  the  grand  jur}-,  an  indictment  or  present- 
ment by  which  against  the  accused  in  cases  of  alleged  felonies  is  an, 
essential  part  of  due  process  of  law,  in  order  that  he  maj'  not  be 
harassed  or  destro3'ed  bj'  prosecutions  founded  onl^'  upon  private  malice 
or  popular  fury. 

This  view  is  certainly  supported  b}'  the  authority  of  the  great  name 
of  Chief  Justice  Shaw  and  of  the  court  in  which  he  presided,  which,  in 
Jones  v.  Mobbins,  8  Gray,  329,  decided  that  the  12th  article  of  the  Bill 
of  Rights  of  Massachusetts,  a  transcript  of  Magna  Charta  in  this  re- 
spect, made  an  indictment  or  presentment  of  a  grand  jury  essential  to 
the  validit}'  of  a  conviction  in  cases  of  prosecutions  for  felonies.  .  .  . 
[Hei'e  follows  a  consideration  of  this  case  and  of  certain  language  of 
Coke.] 

This  view  of  the  meaning  of  Lord  Coke  is  the  one  taken  by  Mer- 
rick, J.,  in  his  dissenting  opinion  in  Jones  v.  Bobbins,  8  Gray,  329,  who 
states  his  conclusions  in  these  words  :  "  It  is  the  forensic  trial,  under  a 
broad  and  general  law,  operating  equally  upon  every  member  of  our 
community',  which  the  words  '  by  the  law  of  the  land,'  in  Magna  Charta, 
and  in  ever}'  subsequent  declaration  of  rights  which  has  borrowed  its 
phraseolog}',  make  essential  to  the  safet}'  of  the  citizen,  securing 
thereby  both  his  liberty  and  his  propert}',  b}'  preventing  the  unlawful 
arrest  of  his  person  or  any  unlawful  interference  with  his  estate."  See 
also  State  v.  Starling,  1.5* Rich.  (S.  C.)  Law,  120. 


618 


IIURTADO   V.    CALIFORNIA. 


[chap.  rv. 


Mr.  Reeve,  in  2  Ilistoiy  of  Eng.  Law,  43,  translates  the  phrase,  nisi 
2yer  legale  judicium  ^yciriitm  suorum  vel  per  ler/em  terrce,  "  But  b}'  the 
judgment  of  his  peers,  or  by  some  other  legal  process  or  proceeding 
adai)tcd  by  the  law  to  the  nature  of  the  case." 
*.4i^  Chancellor  Kent,  2  Com.  13,  adopts  this  mode  of  construing  the 
phrase.  Quoting  the  language  of  Magna  Charta,  and  referring  to  Lord 
Coke's  comment  upon  it,  he  says  :  "  The  better  and  larger  definition  of 
jlue  p)'ocess  of  law  is  that  it  means  law  in  its  regular  course  of  adminis- 
tration through  courts  of  justice." 

This  accords  with  what  is  said  in  Westerveli  v.  Gregg,  12  N.  Y.  202, 
bj'  Denio,  J.,  p.  212  :  "The  provision  was  designed  to  protect  the  citizen 
against  all  mere  acts  of  power,  whether  flowing  from  the  legislative  or 
executive  branches  of  the  government." 

The  principal  and  true  meaning  of  the  phrase  has  never  been  more 
tersely  or  accurately  stated  than  by  Mr.  Justice  Johnson,  in  Bank  of 
Columbia  v.  Okely,  4  AVheat.  235-244  :  "  As  to  the  words  from  Magna 
Charta,  incorporated  into  the  Constitution  of  Maryland,  after  volumes 
spoken  and  written  with  a  view  to  their  exposition,  the  good  sense  of 
mankind  has  at  last  settled  down  to  this  :  that  they  were  intended  to 
secure  the  individual  from  the  arbitrary  exercTse~orthe~i5owers^r  gov 


ernment,  unrestrained  by  the  established  principles  of  private  right  and 


distributive  justice." 

~~SrndThe"conchision  rightly  deduced  is,  as  stated  by  Mr.  Cooley,  Con- 
stitutional Limitations,  356  :  ^-The  principles,  then,  upon  whicb_the 
process  is  based,  are  to  determine  whether  it  is  '■  due  process  '  or  not, 
and  not  any  considerations  of  mere  form.  Administrative  and  remedial 
process  may  be  changed  from  time  to  time,  but  only  with  due  regai-d  to 
the  landmarks  established  for  the  protection  of  the  citize n . " 

It  is  urged  upon  us,  hov>ever,  in  argument,  that  the  claim  made  in 
behalf  of  the  plaintiff  in  error  is  supported  by  the  decision  of  this  court 
in  Murray's  Lessee  v.  Hobokeii  Land  &  Lmiwovemeni  Company,  18 
How.  272.  .  .  .  [Here  follows  a  passage  from  this  opinion.] 

This,  it  is  argued,  furnishes  an  indispensable  test  of  what  consti- 
tutes "  due  process  of  law  ;  "  that  any  proceeding  otherwise  authorized 
by  law,  which  is  not  thus  sanctioned  by  usage,  or  which  supersedes  and 
displaces  one  that  is,  cannot  be  regarded  as  due  process  of  law. 

But  this  inference  is  unwarranted.  The  real  syllabus  of  the  passage 
quoted  is,  that  a  process  of  law,  which  is  not  otherwise  forbidden,  must 
be  taken  to  be  due  process  of  law,  if  it  can  show  the  sanction  of  settled 
usage  both  in  England  and  in  this  country  ;  but  it  by  no  means  follows 
that  nothing  else  can  be  due  process  of  law.  The  point  in  the  case 
cited  arose  in  reference  to  a  summary  proceeding,  questioned  on  that 
account,  as  not  due  process  of  law.  The  answer  was  :  however  ex- 
ceptional it  may  be,  as  tested  by  definitions  and  principles  of  ordinary 
procedure,  nevertheless,  this,  in  substance,  has  been  immemorially  the 
actual  law  of  the  land,  and,  therefore,  is  due  process  of  law.  But  to 
hold  that  such  a  characteristic  is  essential  to  due  process  of  law,  would 


V 
^  , 


^ 


c 


CHAr.  IV.]  IIURTADO   V.   CALIFORNIA.  619 

be  to  deny  every  quality  of  the  law  but  its  age,  and  to  render  it  incapa- 
ble of  progress  or  improvement.  It  would  be  to  stamp  upon  our  juris- 
prudence the  unchangeableness  attributed  to  the  laws  of  the  INIedes  and 
Persians. 

This  would  be  all  the  more  singular  and  surprising,  in  this  quick  and 
active  age,  when  we  consider  that,  owing  to  the  progressive  develop- 
ment of  legal  ideas  and  institutions  in  England,  the  words  of  Magna 
Charta  stood  for  very  different  things  at  the  time  of  the  separation  of 
the  American  colonies  from  what  they  represented  originally.  .  .  . 

The  Constitution  of  the  United  States  was  ordained,  it  is  true,  by 
descendants  of  Englishmen,  who  inherited  the  traditions  of  English  law 
and  history  ;  but  it  was  made  for  an  undefined  and  expanding  future, 
and  for  a  people  gathered  and  to  be  gathered  from  many  nations  and  of 
many  tongues.  And  while  we  take  just  pride  in  the  principles  and 
institutions  of  the  common  law,  we  are  not  to  forget  that  in  lands 
where  other  S3'stems  of  jurisprudence  prevail,  the  ideas  and  processes 
of  civil  justice  are  also  not  unknown.  Due  process  of  law,  in  spite  of 
the  absolutism  of  continental  governments,  is  not  alien  to  that  code 
which  survived  the  Roman  Empire  as  the  foundation  of  modern  civili- 
zation in  Europe,  and  which  has  given  us  that  fundamental  maxiin  of 
distributive  justice,  —  siium  cuique  tribuere.  There  is  nothing  in 
Magna  Charta,  rightly  construed  as  a  broad  charter  of  public  right  and 
law,  which  ought  to  exclude  the  best  ideas  of  all  systems  and  of  every 
age ;  and  as  it  was  the  characteristic  principle  of  the  common  law  to 
draw  its  inspiration  from  every  fountain  of  justice,  we  are  not  to  assume 
that  the  sources  of  its  supply  have  been  exhausted.  On  the  contrary', 
we  should  expect  that  the  new  and  various  experiences  of  our  own  situ- 
ation and  system  will  mould  and  shape  it  into  new  and  not  less  useful 
forms. 

The  concessions  of  Magna  Charta  were  wrung  from  the  king  as  guar- 
antees against  the  oppressions  and  usurpations  of  his  prerogative.  It 
did  not  enter  into  the  minds  of  the  barons  to  provide  security  against 
their  own  bod\'  or  in  favor  of  the  Commons  by  limiting  the  power  of 
Parliament ;  so  that  bills  of  attainder,  ex  post  facto  laws,  laws  declar- 
ing forfeitures  of  estates,  and  other  arbitrarj-  acts  of  legislation  which 
occur  so  frequentl}'  in  English  histor}',  were  never  regarded  as  incon- 
sistent with  the  law  of  the  land  ;  for  notwithstanding  what  was  attrib- 
uted to  Lord  Coke  in  Bonham's  Case,  8  Rep.  115, 118  a,  the  omnipotence 
of  Parliament  over  the  common  law  was  absolute,  even  against  common 
right  and  reason.  The  actual  and  pi'actical  security  for  English  liberty 
against  legislative  tyranny  was  the  power  of  a  free  public  opinion  rep- 
resented b}'  the  Commons. 

In  this  country  written  constitutions  were  deemed  essential  to  protect 
the  rights  and  liberties  of  the  people  against  the  encroachments  of 
power  delegated  to  their  governments,  and  the  provisions  of  INIagna 
Charta  were  incorporated  into  bills  of  rights.  Thev  were  limitations 
upon  all  the  powers  of  government,  legislative  as  well  as  executive  and 
judicial. 


620  HURTADO   V.   CALIFORNIA.  [CHAP.  IV. 

It  necessarily  happened,  therefore,  that  as  these  broad  and  general 
maxims  of  liberty*  and  justice  held  in  our  s^'stem  a  different  place  and 
performed  a  different  function  from  their  position  and  office  in  English 
constitutional  historj'  and  law,  they  would  receive  and  justify  a  corre- 
sponding and  more  comprehensive  interpretation.  A  implied  in  England 
only  as  guards  against  executive  usurpation  and  tyranny,  here  they 
.have  become  bulwarks  also  against  arbitrary  legislation  ;  but,  in  that 
application,  as  it  would  be  incongruous  to  measure  and  restrict  them  by 
the  ancient  customar}'  English  law,  they  must  be  held  to  guarantee,  not 
])articular  forms  of  procedure,  but  the  very  substance  of  individual 
rights  to  life,  liberty,  and  property. 

Restraints  that  could  be  fastened  upon  executive  authorit}'  with  pre- 
cision and  detail,  might  prove  obstructive  and  injurious  when  imposed 
on  the  just  and  necessary  discretion  of  legislative  power  ;  and,  while  in 
every  instance,  laws  that  violated  express  and  specific  injunctions  and 
prohibitions  might,  without  embarrassment,  be  judiciall}-  declared  to  be 
void,  3'et,  any  general  principle  or  maxim,  founded  on  the  essential 
nature  of  law,  as  a  just  and  reasonable  expression  of  the  public  will  aqd 
of  government,  as  instituted  b}-  popular  consent  and  for  the  general 
good,  can  onlj'  be  applied  to  cases  coming  clearh-  within  the  scope  of 
its  spirit  and  purpose,  and  not  to  legislative  provisions  merely  estab- 
lishing forms  and  modes  of  attainment.  Such  regulations,  to  adopt  a 
sentence  of  Burke's,  "  may  alter  the  mode  and  application,  but  have 
no  power  over  the  substance  of  original  justice."  Tract  on  the  Poper}^ 
Laws,  6  Burke's  Works,  ed.  Little  &  Brown,  323. 

Such  is  the  often-repeated  doctrine  of  this  court.  .  .  .  [Here  follow 
citations  from  Munn  v.  III..,  94  U.  S.  113  ;  Walker  v.  Savinet,  92  U.  S. 
90;  Kennard\.  Louisiana,  92  U.  S.  480;  Davidson  v.  N.  0.,  96 
U.  S.  97.] 

We  are  to  construe  this  phrase  in  the  Fourteenth  Amendment  by  the 
ustis  loque7idi  of  the  Constitution  itself.  The  same  words  are  contained 
in  the  Fifth  Amendment.  That  article  makes  specific  and  express  pro- 
vision for  perpetuating  the  institution  of  the  grand  jur}-,  so  far  as 
relates  to  prosecutions  for  the  more  aggravated  crimes  under  the  laws 
of  the  United  States.     It  declares  that,  — 

"No  person  shall  be  held. to  answer  for  a  capital  or  otherwise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a  grand  jur}', 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia 
when  in  actual  service  in  time  of  war  or  public  danger  ;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy 
of  life  or  limb  ;  nor  shall  he  be  compelled  in  any  criminal  case  to  be 
witness  against  himself."  [It  then  immediately  adds :]  "Nor 'be  de- 
prived of  life,  libert}',  or  property  without  due  process  of  law." 

According  to  a  recognized  canon  of  interpretation,  especially  applicable 
to  formal  and  solemn  instruments  of  constitutional  taw,  we  are  forbid- 
den to  assume,  without  clear  reason  to  the  contrary,  that  any  part  of  this 
most  important  amendment  is  superfluous.     The  natural  and  obvious 


CHAP.  IV.]  HUETADO   V.   CALIFOENIA.  621 

inference  is,  that  in  the  sense  of  the  Constitution,  ''due  process  of  law" 
was  not  meant  or  intended  to  include,  ex  vi  termini^  the  institution 
and  procedure  of  a  grand  jury  in  any  case.  The  conclusion  is  equally 
irresistible,  that  when  the  same  phrase  was  employed  in  the  Fourteenth 
Amendment  to  restrain  the  action  of  the  States,  it  was  used  in  the 
same  sense  and  with  no  greater  extent ;  and  that  if  in  the  adoption  of 
that  amendment  it  had  been  part  of  its  purpose  to  perpetuate  the  insti- 
tution of  the  grand  jury  in  all  the  States,  it  would  have  embodied,  as 
did  the  Fifth  Amendment,  express  declarations  to  that  effect.  Due  pro- 
cess of  law  in  the  latter  refers  to  that  law  of  the  land  which  derives  its 
authority  from  the  legislative  powers  conferred  upon  Congress  by  the 
Constitution  of  the  United  States,  exercised  within  the  limits  therein 
prescribed,  and  interpreted  according  to  the  principles  of  the  common 
law.  In  the  Fourteenth  Amendment,  by  parity  of  reason,  it  refers  to 
that  law  of  the  land  in  each  State  which  derives  its  authority  from  the 
inherent  and  reserved  powers  of  the  State,  exerted  within  the  limits  of 
those  fundamental  principles  of  liberty  and  justice  which  He  at  the  base 
of  all  our  civil  and  political  institutions,  and  the  greatest  security  for 
which  resides  in  the  right  of  the  people  to  make  their  own  laws,  and 
alter  them  at  their  pleasure.  .  .  . 

But  it  is  not  to  be  supposed  that  these  legislative  powers  are  absolute 
and  despotic,  and  that  the  amendment  prescribing  due  process  of  law  is 
too  vague  and  indefinite  to  operate  as  a  practical  restraint.  It  is  not 
every  act,  legislative  in  form,  that  is  law.  Law  is  something  more  than 
mere  will  exerted  as  an  act  of  power.  It  must  be  not  a  special  rule  for 
a  particular  person  or  a  particular  case,  but,  in  the  language  of  Mr. 
Webster,  in  his  familiar  definition,  "  the  general  law,  a  law  which  hears 
before  it  condemns,  which  proceeds  upon  inquiry-,  and  renders  judg- 
ment onh^  after  trial,"  so  "  that  every  citizen  shall  hold  his  life,  liberty, 
propert}',  and  immunities  under  the  protection  of  the  general  rules 
which  govern  society  ;  "  and  thus  excluding,  as  not  due  process  of  law, 
acts  of  attainder,  bills  of  pains  and  penalties,  acts  of  confiscation,  acts 
reversing  judgments,  and  acts  directly  transferring  one  man's  estate  to 
another,  legislative  judgments  and  decrees,  and  other  similar  special, 
partial,  and  arbitrary  exertions  of  power  under  the  forms  of  legislation. 
Arbitrar}'  power,  enforcing  its  edicts  to  the  injury  of  the  persons  and 
propert}'  of  its  subjects,  is  not  law,  whether  manifested  as  tlie  decree  of 
a  personal  monarch  or  of  an  impersonal  multitude.  And  the  limita- 
tions imposed  by  our  constitutional  law  upon  the  action  of  the  govern- 
ments, both  State  and  national,  are  essential  to  the  preservation  of 
public  and  private  rights,  notwithstanding  the  representative  character 
of  our  political  institutions.  The  enforcement  of  these  limitations  by 
judicial  process  is  the  device  of  self-governing  communities  to  protect 
the  rights  of  individuals  and  minorities,  as  well  against  the  power  of 
numbers  as  against  the  violence  of  public  agents  transcending  the  limits 
of  lawful  authority,  even  when  acting  in  the  name  and  wielding  the 
force  of  the  government. 


G22  HURT  ADO   V.    CALIFORNIA.  [CHAP.  IV. 

The  Supreme  Court  of  Mississippi,  in  a  well-considered  case,  — 
JSroxvn  v.  Levee  Commissio7iers,  50  Miss.  468,  —  speaking  of  the  mean- 
ing of  the  phrase  "  due  process  of  law,"  says  :  "•  The  princii)le  does  not 
demand  that  the  laws  existing  at  any  point  of  time  shall  be  irrepealable, 
or  that  any  forms  of  remedies  shall  necessarily  continue.  It  refers  to 
certain  fundamental  rights  which  that  system  of  jurisprudence,  of  which 
ours  is  a  derivative,  has  always  recognized.  If  any  of  these  are  disre- 
garded in  the  proceedings  b}^  which  a  person  is  condemned  to  the  loss 
of  life,  liberty,  or  property,  then  the  deprivation  has  not  been  by  '  due 
process  of  law.' "... 

It  follows  that  any  legal  proceeding  enforced  by  public  authority, 
whether  sanctioned  b}-  age  and  custom,  or  newly  devised  in  the  discre- 
tion of  the  legislative  power,  in  furtherance  of  the  general  public  good, 
which  regards  and  preserves  these  principles  of  liberty  and  justice, 
must  be  held  to  be  due  process  of  law. 

The  Constitution  of  Connecticut,  adopted  in  1818  and  in  force 
when  the  Fourteenth  Amendment  took  effect,  requires  an  indictment 
or  presentment  of  a  grand  jur}'  onl3'  in  cases  where  the  punishment 
of  the  crime  charged  is  death  or  imprisonment  for  life,  and  j^et  it  also 
declares  that  no  person  shall  "  be  deprived  of  life,  liberty,  or  property 
but  by  due  course  of  law."  It  falls  short,  therefore,  of  that  measure  of 
protection  Avhich  it  is  claimed  is  guaranteed  by  Magna  Charta  to  the  right 
of  personal  liberty  ;  notwithstanding  which,  it  is  no  doubt  justly  said  in 
Swift's  Digest,  17,  that  "this  sacred  and  inestimable  right,  without 
which  all  others  are  of  little  value,  is  enjoyed  by  the  people  of  this  State 
in  as  full  extent  as  in  any  country  on  the  globe,  and  in  as  high  a 
degree  as  is  consistent  with  the  nature  of  civil  government.  No  indi- 
vidual or  body  of  men  has  a  discretionary  or  arbitrary  power  to  com- 
mit any  person  to  prison  ;  no  man  can  be  restrained  of  his  liberty,  be 
prevented  from  removing  himself  from  place  to  place  as  he  chooses, 
be  compelled  to  go  to  a  place  contrary  to  his  inclination,  or  be  in  any 
way  imprisoned  or  confined,  unless  by  virtue  of  the  express  laws  of  the 

land." 

Tried  by  these  principles,  we  are  unable  to  say  that  the  substitution 
for  a  presentment  or  indictment  by  a  grand  iurv  of  the  proceeding  bv 
information,  after  examination  and  commitment  by  a  magistrate,  certi- 
fying to  the  probable  guilt  of  the  defendant,  with  the  right  on  his  part 
to  the  aid  of  counsel,  and  to  the  cross-examination  of  the  witnesses 
produced  for  the  prosecution,  is  not  due  process  of  law.  It  is,  as  we 
have  seen,  an  ancient  proceeding  at  common  law,  which  might  include 
every  case  of  an  offence  of  less  grade  than  a  felony,  except  misprision  of 
treason  ;  and  in  every  circumstance  of  its  administration,  as  authorized 
by  the  statute  of  California,  it  carefully  considers  and  guards  the  sub- 
stantial interest  of  the  prisoner.  It  is  merely  a  preliminary  proceeding, 
and  can  result  in  no  final  judgment,  except  as  the  consequence  of  a  reg- 
ular judicial  trial,  conducted  precisely  as  in  cases  of  indictments. 

In  reference  to  this  mode  of  proceeding  at  the  common  law,  and 


CHAP.  IV.]  BAKBIER   V.    CONNOLLY.  623 

■which  he  sa3's  "is  as  ancient  as  the  common  law  itself,"  Blackstone 
adds  (4  Com.  305)  :  — 

"And  as  to  those  offences  in  which  informations  were  allowed  as 
well  as  indictments,  so  long  as  the}-  were  confined  to  this  high  and 
respectable  jurisdiction,  and  were  carried  on  in  a  legal  and  regular 
course  in  his  Majesty's  Court  of  King's  Bench,  the  subject  had  no  rea- 
son to  complain.  The  same  notice  was  given,  the  same  process  was 
issued,  the  same  pleas  were  allowed,  the  same  trial  by  jury  was  had, 
the  same  judgment  was  given  b^'  the  same  judges,  as  if  the  prosecution 
had  originally  been  by  indictment." 

For  these  reasons,  finding  no  error  therein,  the  judgment  of  the 
Supreme  Court  of  California  is  Affirmed} 

[Harlan,  J.,  gave  a  dissenting  opinion.] 


BARBIER  V.    CONNOLLY. 
Supreme  Court  of  the  United  States.     1885. 

[113    U.  S.  27.] 

On  the  8th  of  April,  1884,  the  Board  of  Supervisors  of  the  city  and 
county  of  San  Francisco,  the  legislative  authority  of  that  municipality, 
passed  an  ordinance  reciting  that  the  indiscriminate  establishment  of 
public  laundries  and  wash-houses,  where  clothes  and  other  articles  were 
cleansed  for  hire,  endangered  the  public  health  and  the  public  safety, 
prejudiced  the  well-being  and  comfort  of  the  community,  and  depreci- 
ated the  value  of  property  in  their  neighborhood  ;  and  then  ordaining, 
pursuant  to  authority  alleged  to  be  vested  in  the  Board  under  provisions 
of  the  State  Constitution,  and  of  the  Act  of  Api'il  19,  1856,  consolidat- 
ing the  government  of  the  city  and  count}',  that  after  its  passage  it 
should  be  unlawful  for  any  person  to  establish,  maintain,  or  carry  on  the 
business  of  a  public  laundry  or  of  a  public  wash-house  within  certain 
designated  limits  of  the  city  and  county,  wrthout  first  having  obtained  a 
certificate,  signed  by  the  health  officer  of  the  municipality,  that  the 
premises  were  properly  and  sufficiently  drained,  and  that  all  proper 
arrangements  were  made  to  carry  on  the  business  without  injury  to" the 
samjgi'V  condition  of  _theneighborhood  ;  also  a  certificate  signed  by  the 
Board  of  Fire  Wardens  of  the  municipality,  that  the  stoves,  washing 
and  drying  apparatus,  and  the  appliances  for  heating  smoothing-irons, 
were  in  good  condition,  and  that  their  use  was  not  dangerous  to  the  sur- 
rounding propert}'  from  fire,  and  that  all  proper  precautions  were  taken 
to  comply  with  the  provisions  of  the  ordinance  defining  the  fire  limits  of 

^  And  so  Hallinger  v.  Davis,  146  U.  S.  314.  See  also  the  full  discussions  in  Wyne- 
hamer  v.  The  People,  13  N.  Y.  378  (1856).  —Ed.     • 


624  BARBIER   V.   CONNOLLY.  [CHAP.  IV. 

the  city  and  county,  and  making  regulations  concerning  the  erection  and 
use  of  buildings  therein. 

The  ordinance  required  the  health  ofllecr  and  Board  of  Fire  AVardens, 
upon  application  of  an}'  one  to  open  or  conduct  the  business  of  a  public 
laundry,  to  inspect  the  premises  in  which  it  was  proposed  to  cany  on 
the  business,  in  order  to  ascertain  whether  they  are  provided  with  proper 
drainage  and  sanitary  appliances,  and  whether  the  provisions  of  the  fire 
ordinance  have  been  complied  with  ;  and,  if  found  satisfactory  in  all 
respects,  to  issue  to  the  applicant  the  required  certificates  without  charge 
for  the  services  rendered.  Its  fourth  section  declared  that  no  person 
owning  or  employed  in  a  public  laundry  or  a  public  wash-house  within 
the  prescribed  limits  shall  wash  or  iron  clothes  between  the  hours  of  ten 
in  the  evening  and  six  in  the  morning  or  upon  any  portion  of  Sunday ; 
and  its  fifth  section,  that  no  person  engaged  in  the  laundry  business 
within  those  limits  should  permit  any  one  suffering  from  an  infectious 
or  contagious  disease  to  lodge,  sleep,  or  remain  upon  the  premises. 
The  violation  of  any  of  these  several  provisions  was  declared  to  be  a 
misdemeanor,  and  penalties  were  prescribed  differing  in  degree  accord- 
ing to  the  nature  of  the  offence.  The  establishing,  maintaining,  or 
carrying  on  the  business,  without  obtaining  the  certificates,  was  punish- 
able by  fine  of  not  more  than  $1,000,  or  by  imprisonment  of  not  more 
than  six  months,  or  by  both.  Carrying  on  the  business  outside  of  the 
hours  prescribed,  or  permitting  persons  with  contagious  diseases  on  the 
premises,  was  punishable  by  fine  of  not  less  than  15  or  more  than  S50, 
or  by  imprisonment  of  not  more  than  one  month,  or  b\'  both  such  fine 
and  imprisonment. 

The  petitioner  in  the  court  below,  the  plaintiff  in  error  here,  was  con- 
victed in  the  Police  Judge's  Couit  of  the  City  and  County  of  San  Fran- 
cisco, under  the  fourth  section  of  the  ordinance,  of  washing  and  ironing 
clothes  in  a  public  laundry,  within  the  prescribed  limits,  between  the 
hours  of  ten  o'clock  in  the  evening  of  May  1,  1884,  and  six  o'clock  in 
the  morning  of  the  following  day,  and  was  sentenced  to  imprisonment 
in  the  county  jail  for  five  days,  and  was  accordingly  committed,  in  exe- 
cution of  the  sentence,  to  the  custody  of  the  sheriff  of  the  city  and 
county,  who  was  keeper  of  the  county  jail.  That  court  had  jurisdiction 
to  try  him  for  the  alleged  offence,  if  the  ordinance  was  valid  and  bind- 
ing. But,  alleging  that  his  arrest  and  imprisonment  were  illegal,  he  ob- 
tained from  the  Superior  Court  of  the  city  and  county  a  writ  of  habeas 
corpics,  in  obedience  to  which  his  body  was  brought  before  the  court  by 
the  sheriff,  who  returned  that  he  was  held  under  the  commitment  of  the 
police  judge  upon  a  conviction  of  a  misdemeanor,  the  commitment  and 
sentence  being  profhiced. 

The  petitioner  thereupon  moved  for  his  discharge  on  the  ground  that 
the  fourth  section  of  the  ordinance  violates  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States,  and  certain  sections  of  the 
Constitution  of  the  State.  The  particulars  stated  in  which  such  alleged 
violations  consist  were  substantially  these,  —  omitting  the  repetition  of 


CHAP.  IV.] 


i: 


ySZ^A 


u 


u-^V^AyQ. 


BAKBIER    V.    CONNOLLY. 


(/     625 


&fx: 


the  same  position,  —  that  the  section  discriminatecl  between  the  class  of 
laborers  engaged  in  the  laundr}-  business  and  those  engaged  in  other 
kinds  of  business  ;  that  it  discriminated  b^tweeii  Jaboiiii's  beyond  the 
d^sjgnatedjiniits  and  those  within_J:liem  ;  that  it  clei)i'iv'ed_thej)^etitiouer 
of  the  right  to  labor,  aiid,  as  a  necessaixcqnsequence,  of_thc  right  to 
acquire  propert}- ;  lliat  it  was  not  within  the  power  of  the  Board  of 
Supervisors  of  the  city  and  count}'  of  San  Francisco ;  and  that  it  was 
unreasonable  in  its  requirements.  The  Superior  Court  overruled  the 
positions  and  dismissed  the  writ,  and  the  petitioner  brought  this  w^'it  of 
error. 

Mr.  A.  C.  Searle,  Mr.  H.  G.  Sieberst,  and  Mr.  Alfred  Clar/ce,  for 
plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

Mk.  Justice  Field  delivered  the  opinion  of  the  court.  He  recited 
the  facts  as  above  stated,  and  continued  : 

In  this  case  we  can  only  consider  whether  the  fourth  section  of  the 
ordinance  of  the  cit}'  and  county-  of  San  Francisco  is  in  conflict  with  the 
Constitution  or  laws  of  the  United  States.  We  cannot  pass  upon  the 
conformit}'  of  that  section  witli  the  requirements  of  the  Constitution  of 
the  State.  Our  jurisdiction  is  confined  to  a  consideration  of  the  Federal 
question  iuA'olved,  which  arises  upon  an  alleged  conflict  of  the  fourth 
section  in  question  with  the  first  section  of  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States.  No  other  part  of  the  amend- 
ment has  an}-  possible  application. 

That  fourth  section,  so  far  as  it  is  involved  in  the  case  before  the 
police  judge,  was  simply  a  prohibition  to  carr}-  on  the  washing  and  iron- 
ing of  clothes  in  public  laundries  and  wash-houses,  within  certain  pre- 
scribed limits  of  the  city  and  county,  from  ten  o'clock  at  night  until  six       hi-Ar^jjA 
o'clock  on  the  morning  of  the  following  da}'.     The  prohibition  against      y^ 
labor  on  Sunday  is  not  involved.     The  provision  is  purely  a  police  reg-     / 
Illation  within  the  competency  of  any  municipality  possessed  of  the     tjzo  v)- 
ordinary  powers  belonging  to  such  bodies.     And  it  would  be  an  extra-      ^        ^^ 
ordinary  usurpation  of  the  authority  of  a  municipality,  if  a  Federal         ^ 
tribunal  should  undertake  to  supervise  such  regulations.     It  may  be  a~<^-v^  (L^ 
necessary  measure  of  precaution  in  a  city  composed  largely  of  wooden 
buildings  like  San  Francisco,  that  occupations  in  which  fires  are  con- 
stantly required,  should  cease  after  certain  hours  at  night  until  the  fol- 
lowing morning  ;  and  of  the  necessity  of  such  regulations  the  municipal 
bodies  are  the  exclusive  judges  ;  at  least  any  correction  of  their  action 
in  such  matters  can  come  only  from  State  legislation  or  State  tribunals. 
The  same  municipal  authority  which  directs  the  cessation  of  labor  must 
necessarily  prescribe  the  limits  witliin  which  it  shall  be  enforced,  as  it 
does  the  limits  in  a  city  within  which  wooden  buildings  cannot  be  con- 
structed.    There  is  no  invidious  discrimination  against  any  one  within  1 
the  prescribed  limits  by  such  regulations.     There  is  none  in  the  regula- 
tion under  consideration.     The  specification  of  the  limits  within  which 
the  business  cannot  be  carried  on  without  tlie  certificates  of  the  health 
vol..  I.  —  40 


aix. 


x/i 


IAajI    ^MjC^ 


626  BARBIER   V.    CONNOLLY.  [CILVP.  IV. 

officer  and  Board  of  Fire  Wardens  is  merely  a  designation  of  the  por- 
tion of  the  city  in  wliich  tlie  precautionary  measures  against  fire  and  to 
secure  proper  drainage  must  be  taken  for  the  public  health  and  safet}'. 
It  is  not  legislation  discriminating  against  an}-  one.  All  persons  en- 
gaged in  the  same  business  within  it  are  treated  alike  ;  are  subject  to 
the  same  restrictions  and  are  entitled  to  the  same  privileges  under 
similar  conditions. 

The  Fourteenth  Amendment,  in  declaring  that  no  State  "  shall  deprive 
an}'  person  of  life,  liberty,  or  propert}-,  without  due  process  of  law,  nor 
deny  to  an}'  person  within  its  jurisdiction  the  equal  protection  of  the 
laws,"  undoubtedly  intended  not  onlv  that  there  should  be  no  arbitrary 
deprivation  of  life  or  liberty,  or  arbitrary  spoliation  of  property,  but 
that  equal  protection  and  security  should  be  given  to  all  under  like  cir- 
cumstances in  the  enjoyment  of  their  personal  and  civil  rights  ;  that  all 
persons  should  be  equally  entitled  to  pursue  their  happiness  and  acquire 
and  enjo}'  property  ;  that  the}'  should  have  like  access  to  the  courts  of 
the  country  for  the  protection  of  their  persons  and  property,  the  preven- 
tion and  redress  of  wrongs,  and  the  enforcement  of  contracts  ;  that  no 
impediment  should  be  interposed  to  the  pursuits  of  any  one  except  as 
applied  to  the  same  pursuits  by  others  under  like  circumstances  ;  that 
no  greater  burdens  should  be  laid  upon  one  than  are  laid  upon  others  in 
the  same  caUing  and  condition,  and  that  in  the  administration  of  criminal 
justice  no  different  or  higher  punishment  should  be  imposed  upon  one 
than  such  as  is  prescribed  to  all  for  like  offences.  But  neither  the 
amendment  —  broad  and  comprehensive  as  it  is  —  nor  any  other  amend- 
ment, w'as  designed  to  interfere  with  the  power  of  the  State,  sometimes 
termed  its  police  power,  to  prescribe  regulations  to  promote  the  health, 
peace,  morals,  education,  and  good  order  of  the  people,  and  to  legislate 
so  as  to  increase  the  industries  of  the  State,  develop  its  resources,  and 
add  to  its  wealth  and  prosperity.  From  the  very  necessities  of  society, 
legislation  of  a  special  character,  having  these  objects  in  view,  must 
often  be  had  in  certain  districts,  such  as  for  draining  marshes  and  irri- 
gating arid  plains.  Special  burdens  ai'e  often  necessary  for  general 
benefits  —  for  supplying  water,  preventing  fires,  lighting  districts,  clean- 

j^  OL^<ing  streets,  opening  pai-ks,  and  many  other  olijects.     Regulations  for 
these  purposes  may  press  with  more  or  less  weight  upon  one  than  upon 
^^  another,  l)ut  they  ai:e  designed,  not  to  impose  unequal  or  unnecessary 
estrictions  upon  any  one,  but  to  promote,  with  as  little  individual  in- 
^  •  .convenience  as  possible,  the  general  good.     Though,  in  many  respects, 
''*"■     necessarily  special  in  their  character,  they  do  not  fui-nish  just  ground  of 

G/UvU'V^omplaint  if  they  operate  alike  upon  all  persons  and  property  under  the 
same  circumstances  and  conditions.  Class  legislation,  discriminating 
against  some  and  favoring  others,  is  prohibited,  but  legislation  which, 
in  carrying  out  a  public  purpose,  is  limited  in  its  application,  if  within 
the  sphere  of  its  operation  it  affects  alike  all  persons  similarly  situated, 
is  not  within  the  amendment. 

In  the  execution  of  admitted  powers  unnecessary  proceedings  are  often 


CHAP.  IV.]  IN   THE   MATTER   OF   JACOBS.  627 

required  which  are  cumbersome,  diUxtor}',  and  expensive,  yet,  if  no  dis- 
crimination against  anj'  one  be  made  and  no  substantial  right  be  impaired 
by  them,  they  are  not  obnoxious  to  any  constitutional  objection.  The 
inconveniencies  arising  in  the  administration  of  the  laws  from  this  cause 
are  matters  entirely  for  the  consideration  of  the  State  ;  they  can  be 
remedied  only  by  the  State.  In  the  case  before  us  the  provisions  re- 
quiring certificates  from  the  health  officer  and  the  Board  of  Fire  \Yardens 
mav,  in  some  instances,  be  unnecessary,  and  the  changes  to  be  made  to 
meet  the  conditions  prescribed  ma}'  be  burdensome,  but,  as  we  have 
said,  this  is  a  matter  for  the  determination  of  the  municipality  in  the 
execution  of  its  police  powers,  and  not  a  violation  of  any  substantial 
right  of  the  individual.  Judgment  afflrmecU 


In  the   Matter   of   THE   APPLICATION   OF   JACOBS. 

New  York  Court  of  Appeals.     1885. 

[98  N.  Y.  98.] 

Peter  B.  Olney,  District  Attorne}',  for  appellant. 

Wm.  31.  Evarts.,  A.  J.  Ditteiihoejfer,  and  JIoriHs  S.  Wise,  for 
respondent. 

Earl,  J.  The  relator  Jacobs  was  arrested  on  the  14th  day  of  May, 
1884,  on  a  warrant  issued  b}'  a  police  justice  in  the  city  of  New  York 
under  the  Act  chapter  272  of  the  Laws  of  1884,  passed  May  12,  entitled 
"  An  Act  to  improve  the  Public  Health  b}-  prohibiting  the  Manufacture 
of  Cigars  and  Preparation  of  Tobacco  in  any  form  in  Tenement-houses  in 
certain  Cases,  and  regulating  the  Use  of  Tenement-houses  in  certain 
Cases."  On  the  evidence  of  the  complainant  he  was  by  the  justice  com- 
mitted for  trial,  and  thereafter  upon  his  petition,  a  justice  of  the  Supreme 
Court  granted  a  writ  of  habeas  corpus,  to  which  a  return  was  made,  and 
upon  the  hearing  thei-eon  the  justice  made  an  order  dismissing  the  writ 
and  remanding  him  to  prison.  From  that  order  he  appealed  to  the 
General  Term  of  the  Supreme  Court,  which  reversed  the  order  and  dis- 
charged him  from  prison,  on  the  ground  that  the  Act  under  which  he 
was  arrested  was  unconstitutional  and  therefore  void.  The  district 
attorney  on  behalf  of  the  people  then  appealed  to  this  court,  and  the 
sole  question  for  our  determination  is,  whether  the  Act  of  1884  creat- 
ing the  offence  for  which  the  relator  was  arrested  was  a  constitutional 
exercise  of  legislative  power. 

The  facts  as  they  appeared  before  the  police  justice  were  as  follows  : 
The  relator  at  the  time  of  his  arrest  lived  with  his  wife  and  two  chil- 
dren in  a  tenement-house  in  the  city  of  New  York  in  which  three  other 
families  also  lived.  There  were  four  floors  in  the  house,  and  seven 
rooms  on  each  floor,  and  each  floor  was  occupied  b}'  one  famih'  living 

1  And  so  Sooti  Ring  v.  Crowley,  113  U.  S.  703. —  Ed. 


628  IN    THE    MATTER   OF   JACOBS.  [CIIAP.  IV. 

independenth'  of  the  others,  and  doing  their  cooking  in  one  of  the 
rooms  so  occupied.  The  relator  at  the  time  of  his  arrest  was  engaged 
in  one  of  his  rooms  in  preparing  tobacco  and  making  cigars,  but  there 
was  no  smell  of  tobacco  in  any  part  of  the  house  except  the  room  where 
he  was  thus  engaged. 

These  facts  showed  a  violation  of  the  provisions  of  the  Act  which 
took  effect  immediately  upon  its  passage  and  the  material  portions  of 
which  are  as  follows:  "  Section  1.  The  manufacture  of  cigars  or  pre- 
paration of  tobacco  in  an}'  form  on  any  floor,  or  in  any  part  of  any 
floor,  in  any  tenement-house  is  hereby  prohibited,  if  such  floor  or  anj' 
part  of  such  floor  is  by  any  person  occupied  as  a  home  or  residence  for 
the  purpose  of  living,  sleeping,  cooking,  or  doing  any  household  work 
therein.  Section  2.  Any  house,  building,  or  portion  thereof  occupied 
as  the  home  or  residence  of  more  than  three  families  living  indepen- 
dentl}'  of  one  another,  and  doing  their  cooking  upon  the  premises,  is  a 
tenement-house  within  the  meaning  of  this  Act.  Section  3.  The  first 
floor  of  said  tenement-house  on  which  there  is  a  store  for  the  sale  of 
cigars  and  tobacco  shall  be  exempt  from  the  prohibition  provided  in 
section  one  of  this  Act.  Section  5.  Everj-  person  who  shall  be  found 
guilty  of  a  violation  of  this  Act,  or  of  having  caused  another  to  commit 
such  violation,  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be 
punished  for  every  offence  by  a  fine  of  not  less  than  ten  dollars  and  not 
more  than  one  hundred  dollars  or  by  imprisonment  for  not  less  than  ten 
days  and  not  more  than  six  months,  or  both  such  fine  and  imprison- 
ment. Section  6.  This  Act  shall  apply  onl}'  to  cities  having  over  five 
hundred  thousand  inhabitants." 

What  does  this  Act  attempt  to  do  ?  In  form,  it  makes  it  a  crime  for  a 
cigar-maker  in  New  York  and  Brooklyn,  the  only  cities  in  the  State  hav- 
ing a  population  exceeding  500,000,  to  carry  on  a  perfectly  lawful  trade 
in  his  own  home.  Whether  he  owns  the  tenement-house  or  has  hired  a 
room  therein  for  the  purpose  of  prosecuting  his  trade,  he  cannot  manu- 
facture therein  his  own  tobacco  into  cigars  for  his  own  use  or  for  sale, 
and  he  will  become  a  criminal  for  doing  that  which  is  perfectly  lawful 
outside  of  the  two  cities  named  —  everywhere  else,  so  far  as  we  are 
able  to  learn,  in  the  whole  world.  He  must  either  abandon  the  trade 
by  which  he  earns  a  livelihood  for  himself  and  family,  or,  if  able,  pro- 
cure a  room  elsewhere,  or  hire  himself  out  to  one  who  has  a  room  upon 
such  terms  as,  under  the  fierce  competition  of  trade  and  the  inexorable 
laws  of  supply  and  demand,  he  may  be  able  to  obtain  from  his  employer. 
He  may  choose  to  do  liis  work  where  he  can  have  the  supervision  of  his 
family  and  their  help,  and  such  choice  is  denied  him.  He  may  choose 
to  work  for  himself  rather  tlian  for  a  taskmaster,  and  he  is  left  without 
freedom  of  choice.  He  ma^-  desire  the  advantage  of  cheap  production 
in  consequence  of  his  cheap  rent  and  family  help,  and  of  this  he  is  de- 
prived. In  the  unceasing  struggle  for  success  and  existence  which  per- 
vades all  societies  of  men,  he  may  be  deprived  of  that  which  will  enable 
him  to  maintain  his  hold,  and  to  survive.     He  may  go  to  a  tenement- 


\J 


CHAP.  IV.l  IN   THE   MATTER   OF   JACOBS.  629        /,*.  I 

house,  and  finding  no  one  living,  sleeping,  cooking,  or  doing  any  house- 
hold work  upon  one  of  the  floors,  hire  a  room  upon  such  floor  to  carry 
on  his  trade,  and  afterward  some  one  ma\-  commence  to  sleep  or  to  do 
some  household  work  upon  such  floor,  even  without  his  knowledge,  and 
he  at  once  becomes  a  ciiminal  in  consequence  of  another's  act.  He 
may  go  to  a  tenement-house,  and  finding  but  two  families  living  therein 
independent!}-,  hire  a  room,  and  afterward  b}'  subdivision  of  the  families, 
or  a  change  in  their  mode  of  life,  or  in  some  other  way,  a  fourth  famil}' 
begins  to  live  therein  independently,  and  thus  he  ma}'  become  a  crimi- 
nal without  the  knowledge,  or  possibly  the  means  of  knowledge  that  he 
was  violating  any  law.  It  is,  thei'efore,  plain  that  this  law  interferes 
with  the  profitable  and  free  use  of  his  property  by  the  owner  or  lessee 
of  a  tenement-house  vvho  is  a  cigar-maker,  and  trammels  him  in  the  ap- 
plication of  his  industry  and  the  disposition  of  his  labor,  and  thus,  in  a 
strictly  legitimate  sense,  it  arbitrarily  deprives  him  of  his  property  and 
of  some  portion  of  his  personal  liberty. 

The  constitutional  guarantee  that  no  person  shall  be  deprived  of  his 
property  without  due  process  of  law  may  be  violated  without  the  physi- 
cal taking  of  property  for  public  or  private  use.  Property  ma)'  be 
destroyed,  orjt^_j:aIuejiiay  be  annihilated ;  it  is  owned  and  kept  for  ^^ 

some  useful  purpose  and  it  has  no  value  unless  it  can  be  used.     Its  "'-'V'*^  ^^^ 
capability  for  enjoyment  and  adaptability  to  some  use  are  essential    '^pXAAx-'i^^ 
characteristics  and  attributes  without  which  property  cannot  be   con-   ,/(^  ^^.^..a^a^u 
ceived  ;  and  hence  any  law  which  destroys  it  or   its   value,  or  takes      ^ 
away  any  of  its  essential  attributes,  deprives  the  owner  of  his  property.      /  j-*-^ 

The  constitutional  guarantee  would  be  of  little  worth,  if  the  legisla-  ant/i^tA^ 
ture  could,  without  compensation,  destroy  property  or  its  value,  deprive  Jl^^  gjiu 
the  owner  of  its  use,  deny  him  the  right  to  live  in  his  own  house,  or  to  . 
work  at  any  lawful  trade  therein.  If  the  legislature  has  the  power  "^<*-^  "**  ( 
under  the  Constitution  to  prohibit  the  prosecution  of  one  law'ful  trade  %  ytxOJJ- 
in  a  tenement-house,  then  it  may  prevent  the  prosecution  of  all  trades  ,y  ^ 
therein.     "  Questions  of  power,"  says  Chief  Justice  Marshall  in  Broion  ^ 

V.  State  of  Maryland,  12  Wheat.  419,  "do  not  depend  upon  the  de-  ^^  ^^ 
gree  to  which  it  may  be  exercised.     If  it  may  be  exercised  at  all  it  must    ^txx  rU^<K. 
be  exercised  at  the  will  of  those  in  whose  hands  it  is  placed."     Black-     ^^  ^a    ^ 
stone  in  his  classification  of  fundamental  rights  says  :  "  The  third  abso- '      .  ^ 
lute   right   inherent   in   every  Englishman  is  that  of  property   which     --v^aoA^;^ 
consists  in  the  free  use,  enjoyment,  and  disposal  of  all  his  acquisitions      'f^^^i'u.^Jlc 
without  any  control  or  diminution,  save  only  by  the  law  of  the  land."      ^    ^ 
1  Com.  138.     In   Pumpelly  v.  Green  Bay  Co.,   13  AVall.    166,   177,    '^'^^/^ 
Miller,  J.,  says:  "There  may  be  such  serious  interruption  to  the  com-   y\.A.<lM^ 
mon  and  necessary  use  of  property  as  will  be  equivalent  to  a  taking  /-^My  a.  -vi 
within  the  meaning  of  the  Constitution."     In  Wptehamer  y.  Peojyle,  IS        0     i^ 
N.  Y.  378,   398,  Comstock,  J.,  says:  "When  a  law   annihilates  the   ^'^^  '^ 
value  of  property  and  strips  it  of  its  attributes,  by  which  alone  it  is  dis-  -^xxA  ^  ^ 
tinguished  as  property,  the  owner  is  deprived  of  it  according  to  the 
plainest  interpretation,  and  certainly  within  the  constitutional  provision 


-AXvoLV-xfl-eSO       irv-    ^j'-'^^t-  o^     I^'   THE   MATTER   OF   JACOBS.  [CIIAP.  IV. 

intended  expressly  to  sliield  personal  rights  from  the  exercise  of  arbi- 
vi/.  trary  power."     In  FeopU  v.   Oils,  90  N.  Y.   48,  Andrews,  J.,  says: 

^^Ju_,,.,j^     "  Depriving  an  owner  of  property  of  one  of  its  attributes  is  depriving 
^_^  him  of  iiis  property  witliin  the  constitutional  provision." 

So,  too,  one  may  be  depri ved  of  his  liberty  and  his   constitutional 
:t  v^         rights  thereto  violated  without  the  actual  imprisonment  or  restraint  of 
.XjLcA.         his  person.^ Liberty,  in  its  broad  sense  as  understood  in  this  country,' 
means  the  right,  not  only  of  freedom  from  actual  servitude,  imprison- 
ment,  or  restraint,  but  the  right  of  one  to  use  his  faculties  in  all  lawful 
\vays,  to  live  and  work  where  he  will,  to  earn  his  livelihood  in  an}'  law-j 
ful  calling,  and  to  pursue  any  lawful  trade  or  avocation.  (AH  laws, 
jt^^^/^j-cxj       therefore,  which  kuj)aii-  or  trajnmel  these  rights,  which  limit  one  in  his 
choice  of  a  trade  or  profession,  or  confine  hiin  to  work  or  live  in  a  speci- 
fied locality*,  or  exclude  him  from  his  own  house,  or  restrain  his  other- 
wise lawful   movements  (except  as  such  laws  may  be  passed  in  the 
exercise  by  the  legislature  of  the  police  power,  which  will  be  noticed 
later),  are  infringements  upon  his  fundamental  rights  of  liberty,  which 
Jl^  yj<./>~o  are  under  constitutional  protection.     In  Butchers'  Union  Company  v. 
'a^jjuxK-    ^'''^^^^^^^  ^^^y  ^^-f  m  U.  S.  746,  Field,  J.,   says:  That  among  the 
j-^j^inalienable  rights  as  proclaimed  in  the  Declaration  of  Independence  "  is 
•i  the  right  of  men  to  pursue  an}^  lawful  business  or  vocation  in  anj'  man- 

ner not  inconsistent  with  the  equal  rights  of  others,  which  may  increase 
their  property*  or  develop  their  faculties,  so  as  to  give  them  their  highest 
enjo3'ment.  The  common  business  and  callings  of  life,  the  ordinary 
trades  and  pursuits  which  are  innocent  in  themselves,  and  have  been 
followed  in  all  communities  from  time  immemorial,  must,  therefore,  be 
free  in  this  country  to  all  alike  upon  the  same  terms.  The  right  to 
pursue  them  without  let  or  hindrance,  except  .that  which  is  applied  to 
all  persons  of  the  same  age,  sex,  and  condition,  is  a  distinguishing 
privilege  of  citizens  of  the  United  States,  and  an  essential  element  of 
that  freedom  which  they  claim  as  their  birthright."  In  the  same  case 
Bradle}-,  J.,  says :  "I  hold  that  the  liberty  of  pursuit,  the  right  to  fol- 
low an}'  of  the  ordinary  callings  of  life,  is  one  of  the  privileges  of  a  citi- 
zen of  the  United  States,"  of  which  he  cannot  be  deprived  without 
invading  his  right  to  libert}'  within  the  meaning  of  the  Constitution.  In 
Live-Stocky  etc.,  Asftociation  v.  Crescent  City,  etc.,  Comjxiny.,  1  Abb. 
U.  S.  388,  398,  the  learned  presiding  justice  says:  "There  is  no  more 
sacred  right  of  citizenship  than  the  right  to  pursue  unmolested  a  law- 
ful employment  in  a  lawful  manner.  It  is  nothing  more  nor  less  than 
the  sacred  right  of  labor."  In  Wynehamer  v.  People.,  Johnson,  J., 
saj's  :  "  That  a  law  which  should  make  it  a  crime  for  men  either  to  live 
in,  or  rent  or  sell  their  houses,"  would  violate  the  constitutional  guar- 
antee of  personal  liberty.  In  Bertholf  v.  O'Reilly.,  74  N.  Y.  509,  515, 
Andrews,  J.,  sa\'s  :  That  one  could  "  be  deprived  of  his  liberty  in  a 
constitutional  sense  without  putting  his  person  in  confinement,"  and 
that  a  man's  right  to  libert}'  included  "  the  right  to  exercise  his  facul- 
ties, and  to  follow  a  lawful  avocation  for  the  support  of  life."  .  .  . 


/hiju^* 


CHAP.  IV.] 


^«-XLJCv.v\A. 


<lA.^«S-l/^^-<5(-K  ^ 


IN  THE 


MATTER   OF 


JACODS. 


V^ 


These  citations  are  sufficient  to  show  that  tlic  police  power  is  not  with- 
out  limitations,  and  that  in  its  exercise  the  le<;islature  must  respect  the 
great  I'mulamental  rights  guaranteed  by  the  Constitution.  If  this  were 
otherwise,  the  power  of  the  legislature  would  be  practically  without 
limitation.  In  the  assumed  exercise  of  the  police  power  in  the  interest 
of  the  health,  the  welfare,  or  the  safety  of  the  public,  every  right  of  the 
citizen  might  be  invaded  and  everj;  constitutional  barrier  swept  away. 

Generally  it  is  for  the  legislature  to  determine  what  laws  and  regula- 
tions are  needed  to  protect  the  public  health  and  secure  the  public 
comfort  and  safety,  and  while  its  measures  are  calculated,  intended, 
convenient,  and  appropriate  to  accomplish  these  ends,  the  exercise  of 


its  discretion  is  not  subject  to  review  b}^  the  couj:ts.  But  the}-  must 
have  some  relation  to  these  ends.  Under  the  mere  guise  of  police 
regulations,  personal  rights  and  private  property  cannot  be  arbitraril}' 
invaded,  and  the  determination  of  the  legislature  is  not  final  or  conclu- 
sive. If  it  passes  an  Act  ostensibly  for  the  public  health,  and  thereby 
destroys  or  takes  away  the  propertj^  of  a  citizen,  or  interferes  with  his 
personal  liberty,  then  it  is  for  the  courts  to  scrutinize  the  Act  and  see 
whether  it  really  relates  to  and  is  convenient  and  appropriate  to  pro- 
mote the  public  health.  It  matters  not  that  the  legislature  ma}'  in  the 
title  to  the  Act,  or  in  its  body,  declare  that  it  is  intended  for  the  im- 
provement of  the  public  health.  Such  a  declaration  does  not  conclude 
the  courts,  and  the}'  must  yet  determine  the  fact  declared  and  enforce 
the  supreme  law.  .  .  . 

It  is  plain  that  this  is  not  a  health  law,  and  that  it  has  no  relation 
whatever  to  the  public  health.  Under  the  guise  of  promoting  the  pub- 
lic health  the  legislature  might  as  well  have  banished  cigar-making  from 
all  the  cities  of  the  State,  or  confined  it  to  a  single  city  or  town,  or  have 
placed  under  a  similar  ban  the  trade  of  a  baker,  of  a  tailor,  of  a  shoe- 
maker, of  a  woodcarver,  or  of  any  other  of  the  innocuous  trades  carried 
on  by  artisans  in  their  own  homes.  The  power  would  have  been  the 
same,  and  its  exercise,  so  far  as  it  concerns  fundamental,  constitutional 
rights,  could  have  been  justified  by  the  same  arguments.  Such  legisla- 
tion  may  invade  one  class  of  rights  to-cla}^a,nd  another  tomorrow,  and 
if  it  can  be  sanctioned  under  the  Constitution,  while  far  removed  in 
time  we  will  not  be  far  away  in  practical  statesmanship  from  those  ages 
when  governmental  prefects  supervised  the  building  of  houses,  the  rear- 
ing of  cattle,  the  sowing  of  seed,  and  the  reaping  of  grain,  and^overn- 
mental  ordinances  regulated  the  movements  and  labor  of  artisans,  th e 
rate  of  wages,  the  price  of  food,  the  diet  and  clothing  of  the  people, 
and  a  large  range  of  other  affairs  long  since  in  all  civilized  lands  I'e- 
garded  as  outside  of  governmental  functions.  Such  governmental 
interferences  disturb  the  normal  adjustments  of  the  social  fabric,  and 
usually  derange  the  delicate  and  complicated  machinery  of  industry  and 
cause  a  score  of  ills  while  attempting  the  removal  of  one.  .  .  . 

The  order  should  be  affirmed.     All  concur.  Order  affirmed. 


631   ^  h  ^"^ 


632  PEOPLE  V.   MARX.  [CHAP.  IV. 

PEOPLE  V.  MARX.        Ou^taic^.  A^e^^^-la^CLMu 
New  York  Court  of  Appeals.     1885. 
[99  N.  Y.  377.] 

7^.  7?.  Coudert  and  Wheeler  H.  Peckham,  for  appellant. 

Samuel  Hand,  for  respondent. 

Rapallo,  J.  The  defendant  was  convicted  in  the  Court  of  General 
Sessions  of  the  city  and  count}'  of  New  York,  of  a  violation  of  the 
sixth  section  of  an  Act  entitled  "  An  Act  to  prevent  Deception  in  Sales 
of  Dair}'  Products."  Chap.  202  of  the  Laws  of  ISS-i.  On  appeal  to 
the  General  Term  of  the  Supreme  Court  in  the  first  department,  the 
conviction  was  affirmed,  and  the  defendant  now  appeals  to  this  court 
from  the  judgment  of  affirmance. 

The  main  ground  of  the  appeal  is  that  the  section  in  question  is  un- 
constitutional and  void. 

The  section  provides  as  follows  : 

"  §  6.  No  person  shall  manufacture  out  of  an}'  oleaginous  sub-  • 
stances,  or  any  compound  of  the  same,  other  than  that  produced  from 
unadulterated  milk  or  of  cream  from  the  same,  any  article  designed  to 
take  the  place  of  butter  or  cheese  produced  from  pure  unadulterated 
milk  or  cream  of  the  same,  or  shall  sell  or  offer  to  sell  the  same  as  an 
article  of  food.  This  provision  shall  not  apply  to  pure  skim-milk 
cheese  produced  from  pure  skim-milk."  The  rest  of  the  section  sub- 
jects to  heavy  punishments  by  fine  and  imprisonment,  "  whoever 
violates  the  provisions  of  this  section." 

The  indictment  charged  the  defendant  with  having  on  the  31st  of 
October,  1884,  at  the  city  of  New  York,  sold  one  pound  of  a  certain 
article  manufactured  out  of  divers  oleaginous  substances  and  com- 
pounds thereof,  other  than  those  produced  from  unadulterated  milk, 
to  one  J.  M.,  as  an  article  of  food,  the  article  so  sold  being  designed 
to  take  the  place  of  butter  produced  from  pure  unadulterated  milk  or 
cream.  It  is  not  charged  that  the  article  so  sold  was  represented  to  be 
butter,  or  was  sold  as  such,  or  that  there  was  any  intent  to  deceive  or 
defraud,  or  that  the  article  was  in  any  respect  unwholesome  or  delete- 
rious, but  simply  that  it  was  an  article  designed  to  take  the  place  of 
butter  made  from  pure  milk  or  cream. 

On  the  trial  the  prosecution  proved  the  sale  by  the  defendant  of  the 
article  known  as  oleomargarine  or  oleomargarine  butter.  That  it  was 
sold  at  about  half  the  price  of  ordinary  dairy  butter.  The  purchaser 
testified  that  the  sale  was  made  at  a  kind  of  factory,  having  on  the 
outside  a  large  sign  "Oleomargarine."  That  he  knew  he  could  not 
get  butter  there,  but  knew  that  oleomargarine  was  sold  there.  And 
the  district  attorney  stated  that  it  would  not  be  claimed  that  there  was 
anv  fraudulent  intent  on  the  part  of  the  defendant,  but  that  the  whole 


CHAP.  IV.]  PEOrLE   V.    MARX.  633 

claim  on  the  part  of  the  prosecution  was  that  the  sale  of  oleomargarine 
as  a  substitute  for  dairy  butter  was  prohibited  by  the  statute. 

On  the  part  of  the  defendant  it  was  proved  by  distinguished  chem- 
ists that  oleomargarine  was  composed  of  the  same  elements  as  dair}' 
butter.  That  the  on\y  difference  between  them  was  that  it  contained  a 
smaller  proportion  of  a  fatty  substance  known  as  butterine.  That  this 
butterine  exists  in  dairy  butter  only  in  a  small  proportion  —  from  three 
to  six  per  cent.  That  it  exists  in  no  other  substance  than  butter  made 
from  milk  and  it  is  introduced  into  oleomargarine  butter  by  adding  to 
the  oleomargarine  stock  some  milk,  cream  or  butter,  and  churning, 
and  when  this  is  done  it  has  all  the  elements  of  natural  butter,  but 
there  must  always  be  a  smaller  percentage  of  butterine  in  the  manu- 
factured product  than  in  butter  made  from  milk.  The  only  effect  of 
the  butterine  is  to  give  flavor  to  the  butter,  having  nothing  to  do  with 
its  wholesomeness.  That  the  oleaginous  substances  in  the  oleomar- 
garine are  substantially'  identical  with  those  produced  from  milk  or 
cream.  Professor  Chandler  testified  that  the  only  difference  between 
the  two  articles  was  that  dairj-  butter  had  more  butterine.  That  oleo- 
margarine contained  not  over  one  per  cent  of  that  substance,  while 
dairy  butter  might  contain  four  or  five  per  cent,  and  that  if  four  or  five 
per  cent  of  butterine  were  added  to  the  oleomargarine,  there  would 
be  no  diffei-ence ;  it  would  be  butter ;  irrespective  of  tlie  sources, 
the}-  would  be  the  same  substances.  According  to  the  testimon}'  of 
Professor  Morton,  whose  statement  was  not  controverted  or  ques- 
tioned, oleomargarine,  so  far  from  being  an  article  devised  for  pur- 
poses of  deception  in  trade,  was  devised  in  1872  or  1873  b}'  an 
eminent  French  scientist  who  had  been  employed  by  the  French  gov- 
ernment to  devise  a  substitute  for  butter. 

Further  testimony  as  to  the  character  of  the  article  being  offered, 
the  district  attorne}'  announced  that  he  did  not  propose  to  controvert 
that  already  given.  Testimony  having  been  given  to  the  effect  that 
oleomargarine  butter  was  precisely  as  wholesome  as  dairy  butter,  it 
was,  on  motion  of  the  district  attorney,  stricken  out,  and  the  defend- 
ant's counsel  excepted. //The  broad  ground  was  taken  at  the  trial,  and 
boldly  maintained  on  the  argument  of  this  appeal,  that  the  manufacture 
or  sate  of  any  oleaginous  compound,  however  pure  and  wholesome,  as 
an  article  of  food,  if  it  is  designed  to  take  the  place  of  dairy  butter,  is 
by  this  act  made  a  crime.  The  result  of  the  argument  is  that  if,  in 
the  progress  of  science,  a  process  is  discovered  of  preparing  beef 
tallow,  lard,  or  any  other  oleaginous  substance,  and  communicating 
to  it  a  palatable  flavor  so  as  to  render  it  serviceable  as  a  substitute 
for  dairy  butter,  and  equally  nutritious  and  valuable,  and  the  article 
can  be  produced  at  a  comparatively  small  cost,  which  will  place  it 
within  the  reach  of  those  who  cannot  afford  to  buy  dairy  butter,  the 
ban  of  tins  statute  is  upon  it.  Whoever  engages  in  the  business  of 
manufacturing  or  selling  the  prohibited  product  is  guilty  of  a  crime; 
the  industry  must  be  suppressed  ;  those  who  could  make  a  livelihood 


/.j<^n.  A/r- 


PEOPLE   V.   MARX.  [CHAP.  IV. 


by  it  are  deprived  of  that  privilege,  the  capital  invested  in  the  busi- 
ness must  be  sacrificed,  and  such  of  the  people  of  the  State  as  canuot 
afford  to  buy  dairv  butter  nnist  eat  their  bread  uubuttered. 

The  references  which  have  been  here  made  to  the  testimony  on  the 
jL'  jL  trial  are  not  with  the  view  of  instituting  an3-  comparison  between  the 
I  relative  ^merits  of  oleomargarine  and  dairj'  butter,  but  rather  as  illus- 

'■^•'^^  *  trative  of  the  character  and  effect  of  the  statute  whose  validit}'  is  in 
fjj'^  question.     The  indictment  upon   which   the  defendant  was  convicted 

«  .  '  does  not  mention  oleomargarine,  neither  does  the  section  (§  6)  of  the 
^*^*'^^*'^^^^ statute,  although  the  article  is  mentioned  in  other  statutes,  which  will 
•y-L  TJIml  be  referred  to.  All  the  witnesses  who  have  testified  as  to  the  qualities 
^Vi  of  oleomargarine  may  be  in  error,  still  that  would  not  change  a  par- 
17^  tide  the  nature  of  the  question,  or  the  principles  bj-  which  the  validity' 
'^-*^^  of  the  act  is  to  be  tested.  Section  6  is  broad  enough  in  its  terms  to 
a/^;<.  embrace  not  only  oleomargarine,  but  any  other  compound,  however 

ri  1j9       wholesome,  valuable,  or  cheap,  which  has  been  or  maj-  be  discovered 
or  devised  for  the  purpose  of  being  used  as  a  substitute  for  butter. 
i<_YvA^«   ,    Ever}'  such  product  is  rigidl}-  excluded  from  manufacture  or  sale  in 
J  this  State. 

ZuA  <K         One  of  the  learned  judges  who  delivered  opinions  at  the  General 

Term  endeavored  to  sustain  the  Act  on  the  "round  that  it  was  intended 

to  prohibit  the  sale  of  any  artificial  compound,  as  genuine  butter  or 

^X^ik-       cheese   made  from   unadulterated  milk  or  cream.     That  it  was   that 


design  to  deceive  which  the  law  rendered  criminal.      If  that  were  a 


\\sxX, 


correct  interpretation  of  the  Act,  we  should  concur  with  the  learned 
^^^''^^^^ "     judge  in  his  conclusion  as  to  its  validit}',  but  we  could  not  concur  in 
jjj\x/ys,      his  further  view  thai,  such  an  oflfence  was  charged  in  the  indictment, 
I  or  proved  upon  the  trial.     The  express  concessions  of  the  prosecuting 

i  y^^'^  "  officer  are  to  the  contrary.     We  do  not  think  that  section  6  is  capable 
of  the  construction    claimed.     The  prohibition   is   not   of  the   manu- 
facture or  sale  of  an  article  designed  as  an  imitation  of  dairy  butter 
or  cheese,  or  intended   to  be   passed  ofl?"  as  such,  but   of  an  article 
;^,^ca/>_^     designed  to  take  the  place  of  dairy  butter  or  cheese.     The  artificial 
product  might  be  green,  red,  or  white  instead  of  yellow,  and  totally 
■    "V^^    dissimilar  in  appearance  to  ordinar}'  dairy  butter,  yet  it  might  be  de- 
Xj^_jtX        signed  as  a  substitute  for  butter,  and  if  so,  would  fall  within  the  pro- 
hibition of  the  statute.     Simulation  of  butter  is  not  the  act  prohib- 
J"^^-^^*-^^  ited.     There  are  other  statutory  provisions  fully  covering  that  subject. 
^^^^^     Chapter  215  of  the  Laws  of  1882,  entitled  "An  Act  to  regulate  the 
C^     Manufacture  and  Sale  of  Oleomargarine,  or  anj'  Form   of  Imitation 
^jlj^w-3  Butter  and  Lard,  or  an}-  Form  of  Imitation  Cheese,  for  the  Pi-evention 
-        of  Fraud,  and  the  Better  Protection  of  the  Public  Health,"  b}-  its  first 
^''^^'^^'^' section  prohibits  the  introduction  of  an}' substance  into  imitation  butter 
A        or  cheese  for  the  purpose  of  imparting  thereto  a  color  resembling  that 
^'      '      of  yellow  butter  or  cheese.     The  second  section  prohibits  the  sale  of 
h-^XArcx.    oleomargarine  or  imitation  butter  thus  colored,  and  the  third  section 
^  prohibits  the  sale  of  any  article  in  semblance  of  natural  cheese,  not  the 


CH.\P.  IV.]  PEOPLE   V.    MARX.  635    j(>^ajui.A 


legitimate  product  of  the  diiiiy,  unless  plainly  marked  "  imitation  cheese."  3i^Jk.  C^ 
Chapter  238  of  the  Laws  of  1882  is  entitled  "  An  Act  for  the  Protec-  a  ,.^,J,^ 
tiou  of  Dairymen,  and  to  prevent  Deception  in  the  Sales  of  Butter  and 
Cheese,"  and  provides  (§  1)  that  every  person  who  shall  manufacture  ^^^  '^ 
for  sale,  or  offer  for  sale,  or  export  any  article  in  semblance  of  butter  vv^-t-o^ 
or  cheese,  not  the  legitimate  product  of  the  dairy,  must  distinctly  and 
durabl}-  stamp  ou  the  side  of  every  cheese,  and  on  the  top  and  side  of 
every  tub,  firkin,  or  package,  the  words  "oleomargarine  butter,"  or  if 
containing  cheese,  "  imitation  cheese,"  and  chapter  246  of  the  Laws 
of  1882,  entitled  "  An  Act  to  prevent  Fraud  in  the  sale  of  Oleomarga- 
rine, Butterine,  Suine,  or  other  Substance  not  Butter,"  makes  it  a  mis-  ^ixcAjn  /2. 
demeanor  to  sell  at  wholesale  or  retail  an}'  of  the  above  articles  _» 
representing  them  to  be  butter.     These  enactments  seem  to  cover  the  ^ 

entire  subject  of  fraudulent  imitations  of  butter,  and  of  sales  of  other    ^^  )p^ 
compounds  as  dairy  products,  and  the}'  are  not  repealed  by  the  Act  of    Aj-^a^^^-iJ^ 

1884,  although  that  Act  contains  an  express  repeal  of  nine  other 
statutes,  eight  of  which  are  directed  against  impure  or  adulterated 
dairy  products,  and  one  against  the  use  of  certain  coloring  matter  in 
oleomargarine.  The  provisions  of  this  last  Act  are  covered  by  one  of 
the  Acts  of  18S2  above  cited,  and  the  provisions  of  the  repealed  Acts 
in  relation  to  dairy  products  are  covered  by  substituted  provisions  in 
the  Act  of  1884,  but  the  statutes  directed  against  fraudulent  Simula-  Vt^  .C^ 
tions  of  butter,  and  the  sale  of  an}'  such  simulations  as  dairy  butter,  a  ,£tLivc 
are  left  to  stand.     Further  statutes  to  the  same  effect  were  enacted  in  . 

1885.  Consequently,  if   the   provisions  of  section   G  should  be  held    \^^^^ 
invalid,  there  would  still  be  ample  protection  in  the  statutes  against 
fraudulent  imitations  of  dairy  butter,  or  sales  of  such  imitations  as 
genuine. 

It  appears  to  us  quite  clear  that  the  object  and  effect  of  the  enact- 
ment under  consideration  were  not  to  supplement  the  existing  pro- 
visions against  fraud  and  deception  by  means  of  imitations  of  dairy 
butter,  but  to  take  a  further  and  bolder  step,  and  by  absolutely  pro 


V,v-<^»-<./Cfc, 


hibiting  the  manufacture  or  sale  of  any  article  which  could  be   used    (pjuyh^ 
as_a,  substitute  for  it,  howev^FopenT^TtuidT'airlyThe  character  of  the  ~ 

substitute  might  be  avowed  and  published,  to  drive  the  substituted 
article  from  the  market,  and  protect  those  eng^aged  in  the  manufac- 
ture of  dairy  products,  against  the  competition  of  cheaper  substances, 
"capaBTe^of  being  applied  to  the  same  uses,  as  articles  of  food. 

The  learned  counsel  for  the  respondent  frankly  meets  this  view,  and 
claims  in  his  points,  as  he  did  oral!}-  upon  the  argument,  that  even  if 
it  were  certain  that  the  sole  object  of  the  enactment  was  to  protect 
thej]ajry_hidustr}'  in  this_State  against  the  substitution  of  a  cheaper  ^^--"-^^^^^ 
article  niade^rom  cheaper  materials,  this  would  not  be  beyond  the  ^  '  '^ 
power_orthe  legislature.  This  we  think  is  the  real  question  presented 
in  the  case.  Conceding  that  the  only  limits  upon  the  legislative  power 
of  the  State  are  those  imposed  b}-  the  State  Constitution  and  that  of 
the  United  States,  we  are  called  upon   to  determine  whether  or  not 

-^tc/OL<.    Jji_j8j»_pU<A     ttuL    .-iXaJjL    t/tu/VO'    ,VA^aL,<a. 


,aaXv.  I/O 


636  PEOrLE   V.    MARK.  [CHAP.  IV. 

those  limits  are  transgressed   by  an   enactment  of  this  description. 
These  limitations  upon  legislative  power  are  necessarily  ver}'  general 
in  their  terms,  but  are  at  the  same   time   ver}'  comprehensive.     The 
Constitution   of  the  State  provides  (art.   1,  §  1),  that  no  member  of 
this  State  shall  be  disfranchised,  or  deprived  of  any  of  the  rights  and 
privileges  secured  to  any  citizen  thereof,  unless  by  the  law  of  the  land, 
or  the  judgment  of  his  peers.     Section  6  of  article  1  provides  that  no 
person  shall  be  deprived  of  life,  liberty,  or  propertv,  without  due  pro- 
cess of  law.     And  the  Fourteenth  Amendment  to  the  Constitution  of 
the  United  States  provides  that  "  no  State  shall  make  or  enforce  any 
law  Avhich  shall  abridge  thCj^privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall' any  State  deprive  an}-  person  of  life,  libertj', 
or   property,   without  v-i^-    process   of  law,  nor   deny  to   any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws."     These  con- 
stitution ;)(i*1||rfeguards  have   been  so   thoroughh-  discussed  in    recent 
cases  thai  le  would  be  superfluous  to  do  more  than  refer  to  the  con- 
L-      ^-  ^sions  which  have  been   reached,  bearing   upon   the   question   now 
■'^^'^'^'^^Minder  consideration.     Among  these  no  proposition  is  now  more  firml}' 
H./     settled  than  that  it  is  one  of^the  fundamental_rights  and  privileges  of 
every  American  citizen  to  adopt^nd  follow  such  lawful  industrial  pur- 
■\AA^^>*-^Suit7~not  injuTIous  to  the  community,  as  he  may  see  fit,     ^ice- Stock 
juJLm    Ass'n  V.  The  Crescent  City,  etc.  1  Abb.  [U.S.]  398;  Slaxigliter- House 
jXi^^Cases,  16  Wall.  106  ;    Corjleld  \.  Coryell,  4  Wash.  C.  C.  380;  Matter 

^ of  Jacobs,  98   N.  Y.  98.     The  term  ''  liberty,"  as   protected  by  thel 
^-^^^i^   Constitution,  is  not  cramped  into  a  mere  freedom  from  phj^sical  re-   !  ^ 
^^t^tXUu^straint  of  the  person  of  the  citizen,  as  In'  incarceration,  but  is  deemed    jr, 
tf  to  embrace  the  right  of  man  to  be  free  in  the  enjoyment  of  the  faculties 
with  which  he  has  been  endowed  by  his  Creator,  subject  only  to  such  . 
'^'^'*-^~'-^     restraints  as  are  necessary  for  the  common  welfare.     In  the  language"^ 
lAiul^.of  Andrews,  J.,   in  Bertholfx.  O'Reilly,  74  N.  Y.  515,  the  right  to 
liberty  embraces  the  right  of  man  "  to  exercise  bis  faculties  and  to 
follow  a  lawful  avocation  for  the  support  of  life,"  and  as  expressed 
b}'  Earl,  J.,  in  la  re  Jacobs,   "one  may  be  deprived  of  his  libert}-, 
and  his  constitutional  right   thereto  violated,   without  the  actual  re- 
straint of  his  person.     Liberty  in  its  broad  sense,   as    understood  in 
this  countr}',   means  the  right  not  only  of  freedom    from   servitude,!  1 1 

imprisonment,  or  restraint,  but  the  right  of  one  to  use  his  faculticsj  '^^ ■  -^ ' 

in  all  lawful  ways,  to  live  and  work  where  be  will,   to  earn  liis  1iv-e»- 
lihood    in    any   lawful   calling,    and   to   pursue    any   lawful   trade   or 
avocation." 
r    Who  will  have  tlie  temerity  to  say  that  these  constitutional  princi- 
[  pies  are  not  violated  by  an  enactment  which  absolute!}'  prohibits  an 
important  branch   of  industr}-   for   the  sole  reason  that   it   competes 
with  another,  and  ma}'  reduce  the  price  of  an  article  of  food  for  the 
\  human  race? 

Measures  of  this  kind  are  dangerous  even  to  their  promoters.     If 
the  argument  of  the  respondent  in  support  of  the  absolute  power  of 


n^y 


CHAP.  IV.]  POWELL   V.    PENNSYLVANIA.  G37 

the  legislature  to  prohibit  one  branch  of  industry  for  the  purpose  of 
protecting  another  with  wliich  it  competes  can  be  sustained,  wh}'  could 
not  the  oleomargarine  manufacturers,  should  they  obtain  sufficient 
power  to  influence  or  control  the  legislative  councils,  prohibit  the 
manufacture  or  sale  of  dairy  products?  Would  arguments  then  be 
found  wanting  to  demonstrate  the  invalidity  under  the  Constitution 
of  such  an  act?  The  principle  is  the  same  in  both  cases.  The  num- 
bers engaged  upon  each  side  of  the  controvers}'  cannot  influence  the 
question  here.  Equal  rights  to  all  are  what  are  intended  to  be  secured 
by  the  establishment  of  constitutional  limits  to  legislative  power,  and 
i mpartial  tribunals  to  enforce  them . 

Illustrations  might  be  indefinitely  multiplied  of  the  evils  which 
would  result  from  legislation  which  should  exclude  one  class  of  citi- 
zens from  industries,  lawful  in  other  respects,  in  order  to  protect 
another  class  against  competition.  We  cannot  doubt  that  such  legis- 
lation is  violative  of  the  letter,  as  well  as  of  the  spirit  of  the  consti- 
tutional provisions  before  referred  to,  nor  that  such  is  the  character 
of  the  enactment  under  which  the   appellant  was  convicted. 

The  judgment  of  the  General  Term  and  of  the  Court  of  Sessions 
should  be  reversed. 

All  concur.  Judgment  reversed} 


POWELL  V.   PENNSYLVANIA. 
Supreme  Coukt  of  the  United  States.     1887. 

[127  U.  S.  678.] 

The  case  is  stated  in  the  opinion. 

Jlr.  D.  T.  Watson  and  3Ir.  Lyman  D.  Gilbert^  for  plaintiff  in 
error.     3fr.  W.  B.  Eodgers  was  with  them  on  the  brief. 

3fr.  Wayne  Mac  Veagh,  for  defendant  in  error.  3fr.  A.  H.  Winter- 
steen  was  with  him  on  the  brief. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

This  writ  of  error  brings  up  for  review  a  judgment  of  the  Supreme 
Court  of  Pennsylvania,  sustaining  the  validity  of  a  statute  of  that 
Commonwealth  relating  to  the  manufacture  and  sale  of  what  is  com- 
monly called  oleomargarine  butter.  That  judgment,  the  plaintiff  in 
error  contends,  denies  to  him  certain  rights  and  privileges  speciallv 
claimed  under  the  Fourteenth  Amendment  to  the  Constitution  of  tlie 
United  States. 

By  Acts  of  the  General  Assembly  of  Pennsylvania,  one  approved 
May  22,  1878,  and.entitled  "  An  Act  to  prevent  Deception  in  the  Sale  of 
Butter  and  Cheese,"  and  the  other  approved  May  24,  1883,  and  entitled 

1  And  so  People  v.  Gtllson,  109  N.  Y.  389  (1888).  Compare  People  v.  Rosenberg,  138 
N.  Y.  410  (1893).  — Ed. 


638  POWELL   V.    PENNSYLVANIA.  [CIIAP.  IV. 

"An  Act  for  the  Protection  of  Dairymen,  and  to  prevent  Deception  in 
Sales  of  Butter  and  Cheese,"  provision  was  made  for  the  stamping, 
branding,  or  marking,  in  a  prescribed  mode,  manufactured  articles  or 
substances  in  semblance  or  imitation  of  butter  or  cheese,  not  the  legiti- 
mate product  of  the  dair}',  and  not  made  exclusively  of  milk  or  cream, 
but  into  which  oil,  lard,  or  fat,  not  produced  from  milk  or  cream,  entered 
as  a  component  part,  or  into  which  melted  butter  or  an}*  oil  thereof  had 
been  introduced  to  take  the  place  of  cream.  Laws  of  Pennsylvania, 
1878,  p.  87;  1883,  p.  43. 

But  this  legislation,  we  presume,  failed  to  accomplish  the  objects  in- 
tended by  the  legislature.  For,  by  a  subsequent  Act,  approved  Ma}-  21, 
1885,  and  which  took  effect  July  1,  1885,  entitled  ' '  An_Act_  foi-  the 
Protection  of  the  Public  Health  and  to  prevent  Adulteration  of^Dair}' 
Products  ancLFra^d~in  the  Sale  thereof,"  Laws  of  Pennsylvania,  1885, 
p.  22,  No.  25,  it  was  provided,  among  other  things,  as  follows  : 

"Section  1.  That  no  person,  firm,  or  corporate  bodv  shall  manu- 
facture out  of  any  oleaginous  substance  or  any  compound  of  the  same, 
other  than  that  produced  from  unadulterated  milk  or  of  cream  from  the 
same,  any  article  designed  to  take  the  place  of  butter  or  cheese  produced 
from  pure  unadulterated  milk  or  cream  from  the  same,  or  of  an}-  imita- 
tion or  adulterated  butter  or  cheese,  nor  shall  sell  or  offer  for  sale,  or 
have  in  his,  her,  or  their  possession,  with  intent  to  sell  the  same,  as  an 
article  of  food. 

"  Section  2.  Every  sale  of  such  article  or  substance,  which  is  pro- 
hibited by  the  first  section  of  this  Act,  made  after  this  Act  shall  take 
effect,  is  hereb}-  declared  to  be  unlawful  and  void,  and  no  action  shall 
be  maintained  in  any  of  the  courts  in  this  State  to  recover  upon  any 
contract  for  the  sale  of  an}-  such  article  or  substance. 

"  Section  3.  Every  person,  company,  firm,  or  corporate  body  who 
shall  manufacture,  sell,  or  oflTer  or  expose  for  sale  or  have  in  his,  her, 
or  their  possession  wnth  intent  to  sell,  an}-  substance,  the  manufacture 
and  sale  of  which  is  prohibited  by  the  first  section  of  this  Act,  shall,  for 
every  such  oflTcnce,  forfeit  and  pay  the  sum  of  one  hundred  dollars, 
which  shall  be  recoverable  with  costs  by  any  person  suing  in  the  name 
of  the  Commonwealth  as  debts  of  like  amounts  are  by  law  recoverable  ; 
one  half  of  which  sum,  when  so  recovered,  shall  be  paid  to  the  proper 
county  treasurer  for  the  use  of  the  county  in  which  suit  is  brought  and 
the  other  half  to  the  pei'son  or  persons  at  whose  instance  such  a  suit 
shall  or  may  be  commenced  and  prosecuted  to  recovery. 

"  Section  4.  Every  person  who  violates  the  provisions  of  the  first 
section  of  this  Act,  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon 
conviction  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  dol- 
lars, nor  more  than  three  hundred,  or  by  imprisonment  in  the  county 
jail  for  not  less  than  ten  nor  more  than  thirty  days,  or  both  such  fine 
and  imprisonment  for  the  first  offence,  and  imprisonment  for  one  year 
for  every  subsequent  offence." 

The  plaintiff  in  error  was  indicted,  under  the  last  statute,  in  the 


CHAP.  IV.]  POWELL   V.    PENNSYLVANIA.  639 

Court  of  Quarter  Sessions  of  the  Peace  in  Dauphin  County,  Pennsyl- 
vania. The  charge  in  the  first  count  of  the  indictment  is,  that  he 
unlawfully  sold,  "  as  an  article  of  food,  two  cases,  containing  five  pounds 
each,  of  an  article  designed  to  take  the  place  of  butter  produced  from 
pure,  unadulterated  milli  or  cream  from  milk,  the  said  article  so  sold, 
as  aforesaid,  being  an  article  manufactured  out  of  certain  oleaginous 
substances  and  compounds  of  the  same  other  than  that  produced  from 
unadulterated  milk  or  cream  from  milk,  and  said  article  so  sold,  as 
aforesaid,  being  an  imitation  butter."  In  the  second  count  the  charge 
is  that  he  unlawfully  had  in  his  possession,  "with  intent  to  sell  the 
same,  as  an  article  of  food,  a  quantity,  viz.,  one  hundred  pounds,  of 
imitation  butter,  designed  to  take  the  place  of  butter  produced  from 
pure,  unadulterated  milk  or  cream  from  the  same,  manufactured  out  of 
certain  oleaginous  substances,  or  compounds  of  the  same  other  than 
that  produced  from  milk  or  cream  from  the  same." 

It  was  agreed,  for  the  purposes  of  the  trial,  that  the  defendant,  on 
July  10,  1885,  in  the  city  of  Harrisburg,  sold  to  the  prosecuting  witness, 
as  an  article  of  food,  two  original  packages  of  the  kind  described  in  the 
first  count ;  that  such  packages  were  sold  and  bought  as  butterine,  and 
not  as  butter  produced  from  pure,  unadulterated  milk  or  cream  from 
unadulterated  milk  ;  and  that  each  of  said  packages  was,  at  the  time  of 
sale,  marked  with  the  words,  "  01^mnargarme_^illtei-,"  upon  the  lid 
■     and  side  in  a  straight  line,  in  Roman  letters  half  an  inch  long. 

It  was  also  agreed  that  the  defendant  had  in  his  possession  one  hun- 
dred pounds  of  the  same  article,  with  intent  to  sell  it  as  an  article  of 
food. 

This  was  the  case  made  b}'  the  Commonwealth. 

The  defendant  then  offered  to  prove  by  Prof.  Hugo  Blanck  that  he 
saw  manufactured  the  article   sold  to  the  prosecuting  witness ;  that  it 
was  made  from  pure  animal  fats  ;  that  the  process  of  manufacture  was 
clean  and  wholesome,  the  article  containing  the  same  elements  as  dairy 
butter,  the  only  difference  between  them  being  that  the  manufactured  ^  oS^ci   l 
article  contained  a  smaller  proportion  of  the  fatty  substance  known  as    >x'^^'»-^«-^ 
butterine  ;  that  this  butterine  existed  in  dairy  butter  in  the  proportion    ^ 
of  from  three  to  seven  per  cent,  and  in  the  manufactured  article  in  a    ^*^  ^p-^^ 
smaller  proportion,  and  was  increased  in  the  latter  by  the  introduction  .^«-X^ 
of  milk  and  cream  ;  that  this  having  been  done,  the  article  contained  ^  , 
all  the  elements  of  butter  produced  from  pure  unadulterated  milk  or   /^'^■^  '^ 
cream  from  the  same  except  that  the  percentage  of  butterine  was  slightly    ^  o  a^^ 
smaller  ;  that  the  only  effect  of  butterine  was  to  give  flavor  to  the  butter  ^  j^      ,^^^ 
and  that  it  had  nothing  to  do  with  its  wholesomeness  ;  that  the  oleagi-  '   .     - 

nous  substances  in  the  manufactured  article  were  substantially  identical    ^^^-^^  ^^^ 
with  those  produced  from  milk  or  cream  ;   and  that  the  article  sold  to-  ^t-^    * 
the  prosecuting  witness  was  a  wholesome  and  nutritious  article  of  food,    n/ ^  ,t/^ 
in  all  respects  as  wholesome  as  butter  produced  from  pure  unadulterated    - 
milk  or  cream  from  unadulterated  milk.  '^^^  £^-e^ 

The  defendant  also  offered  to  prove  that  he  was  engaged  in  the  gro-     W"  ^  J^ 
eery  and  provision  business  in  the  city  of  Harrisburg,  and  that  the       "        v 


^ 


G40  POWELL   V.    PENNSYLVANIA.  [cHAP.  IV. 

article  sold  by  him  was  part  of  a  large  and  valuable  qiiantit}-  manufac- 
tured prior  to  the  21st  of  INIay,  1885,  in  accordance  with  the  laws  of  this 
Commonwealth  relating  to  the  manufacture  and  sale  of  said  article,  and 
so  sold  I)}-  him  ;  that  for  the  purpose  of  prosecuting  that  business  large 
investments  were  made  by  hiui  in  the  purchase  of  suitable  real  estate, 
in  the  erection  of  proper  buildings,  and  in  tlie  purchase  of  tlie  necessar}' 
machinery  and  ingredients;  that  in  his  traflic  in  said  article  he  made 
large  profits  ;  and,  if  prevented  from  continuing  it,  the  value  of  his 
property  employed  therein  would  be  entirely  lost,  and  he  be  deprived 
of  the  means  of  livelihood. 

To  each  offer  tlie  Commonwealth  objected  upon  the  ground  tliat  the 
evidence  proposed  to  be  introduced  was  immaterial  and  irrelevant. 

The  purpose  of  these  oilers  of  proof  was  avowed  to  be  :  (1)  To  show 
that  the  article  sold  was  a  new  invention,  not  an  adulteration  of  dairy 
products,  nor  injurious  to  the  public  health,  but  wholesome  and  nutri- 
tious as  an  article  of  food,  and  that  its  manufacture  and  sale  were  in 
conformity  to  the  Acts  of  May  22,  1878,  and  May  24,  1883.  (2)  To 
show  that  the  statute  upon  which  the  prosecution  was  founded,  was 
unconstitutional,  as  not  a  lawful  exercise  of  police  power,  and,  also, 
because  it  deprived  the  defendant  of  the  lawful  use  "  of  his  propert}-, 
libert}',  and  faculties,  and  destroys  his  property  without  making  com- 
pensation." 

The  court  sustained  the  objection  to  each  offer,  and  excluded  the 
evidence.     An  exception  to  that  ruling  was  dul}'  taken  by  the  defendant. 

A  verdict  of  guilt}'  having  been  returned,  and  motions  in  arrest  of 
judgment  and  for  a  new  trial  having  been  overruled,  the  defendant  was 
adjudged  to  pay  a  fine  of  one  hundred  dollars  and  costs  of  prosecution, 
or  give  bail  to  pay  the  same  in  ten  days,  and  be  in  custod\-  until  the 
judgment  was  performed.  That  judgment  was  affirmed  bj-  the  Supreme 
Court  of  the  State.     114  Penn.  St.  265. 

This  case,  in  its  important  aspects,  is  governed  by  the  principles 
announced  in  Muffler  v.  Kansas^  123  U.  S-  623. 

It  is  immaterial  to  inquire  whether  the  acts  with  which  the  defendant 
is  charged  were  authorized  by  the  statute  of  May  22,  1878,  or  by  that 
of  May  24,  1883.  The  present  prosecution  is  founded  upon  the  statute 
of  May  21,  1885  ;  and  if  that  statute  be  not  in  conflict  with  the  Consti- 
tution of  the  United  States,  the  judgment  of  the  Supreme  Court  of 
Pennsylvania  must  be  affirmed. 

It  is  contended  that  the  last  statute  is  void  in  that  it  deprives  all 
coming  within  its  provisions  of  rights  of  liberty  and  property  without 
due  process  of  law,  and  denies  to  them  the  equal  protection  of  the  laws  ; 
rights  which  are  secured  by  the  Fourteentli  Amendment  to  the  Consii- 
tution  of  the  United  States. 

It  is  scarcely  necessary  to  say  that  if  this  statute  is  a  legitimate  exer- 
cise of  the  police  power  of  the  State  for  the  protection  of  the  health  of 
the  people,  and  for  the  prevention  of  fraud,  it  is  not  inconsistent  with 
that  amendment;  for  it  is  the  settled  doctrine  of  this  court  that,  as 
government  is  organized  for  the  purpose,  among  others,  of  preserving 


CHAP.  IV.]  POWELL   V.    PENNSYLVANIA.  641 

the  public  liejiltli  and  the  public  morals,  it  cannot  divest  itself  of  the 
power  to  i)rovide  for  those  objects  ;  and  that  the  Fourteenth  Amend- 
ment was  not  designed  to  interfere  with  the  exercise  of  that  power  by 
the  States.  Mugler  v.  Kansas,  123  U.  S.  GG3  ;  Butchers'  Union  Co. 
V.  Crescent  City  Co.,  Ill  U.  S.  746,  751  ;  liarbier  v.  Connolly,  113 
U.  S.  27;    Tick  Wo  v.  Hojykins,  118  U.  S.  35G. 

The  question,  therefore,  is  whether  the  prohibition  of  the  manufacture 
out  of  oleaginous  substances,  or  out  of  any  compound  thereof  other  than 
that  produced  from  unadulterated  milk  or  cream  from  unadulterated 
milk,  of  an  article  designed  to  take  the  place  of  butter  or  cheese  pro- 
duced from  pure  unadulterated  milk  or  cream  from  unadulterated  milk, 
or  the  prohibition  upon  the  manufacture  of  any  imitation  or  adulterated 
butter  or  cheese,  or  u[)on  the  selling  or  offering  for  sale,  or  having  in 
possession  with  intent  to  sell,  the  same,  as  an  article  of  food,  is  a  law- 
ful exercise  by  the  State  of  the  power  to  protect,  by  police  regulations, 
the  public  health. 

The  main  proposition  advanced  by  the  defendant  is  that  his  enjoy- 
ment upon  terms  of  equality  with  all  others  in  similar  circumstances  of 
the  privilege  of  pursuing  an  ordinary  calling  or  trade,  and  of  acquiring, 
holding,  and  selling  pi-opert\-,  is  an  essential  part  of  his  rights  of  liberty 
and  property,  as  guaranteed  by  the  Fourteenth  Amendment.  The  court 
assents  to  this  general  proposition  as  embodying  a  sound  principle  of 
constitutional  law.  But  it  cannot  adjudge  that  the  defendant's  rights 
of  libert}'  and  property,  as  thus  defined,  have  been  infringed  by  the 
statute  of  Pennsylvania,  without  holding  that,  although  it  may  have 
been  enacted  in  good  faith  for  the  objects  expressed  in  its  title,  nameh', 
to  protect  the  public  health  and  to  prevent  the  adulteration  of  dair}' 
products  and  fraud  in  the  sale  thereof,  it  has,  in  fact,  no  real  or  sub- 
stantial relation  to  those  objects.  Mugler  v.  Kansas,  123  U.  S.  623, 
661.  The  court  is  unable  to  affirm  that  this  legislation  has  no  real  or 
substantial  relation  to  such  objects. 

It  will  be  observed  that  the  offer  in  the  court  below  was  to  show  by 
proof  that  the  particular  articles  the  defendant  sold,  and  those  in  his 
possession  for  sale,  in  violation  of  the  statute,  were,  in  fact,  wholesome 
or  nutritious  articles  of  food.     It  is  entirely  consistent  with  that  offer 
that   many,    indeed,  that  most  kinds  of  oleomargarine  butter  in  the 
market  contain  ingredients  that  are  or  may  become  injurious  to  healtli. 
The  court  cannot  say,  from  anything  of  which  it  may  take  judicial  cog- 
nizance, that  such  is  not  the  fact.     Under  the  circumstances  disclosed 
in  the  record,  and  in  obedience  to  settled  rules  of  constitutional  con- 
struction, it  must  be  assumed  that  such  is  the  fact.     "  Every  possible  j 
presumption,"  Chief  Justice  Waite  said,  speaking  for  the  court  in  Sink-  ' 
ing  Fund  Cases,  99  U.  S.   700,  718,  "  is  in  favor  of  the  validity  of  a  ; 
statute,  and  this  continues  until  the  contrary  is  shown  beyond  a  rational  { 
doubt.     One  branch  of  the  government  cannot  encroach  on  the  domain  | 
of  another  without  danger.    The  safety  of  our  institutions  depends  in  no  ' 
small  degree  on  a  strict  observance  of  this  salutary  I'ule."     See,  also, 

VOL.  1.  — 41 


642  POWELL   V.    PP:NNSYLVANLA..  [chap.  IV. 

Fletcher  v.  Peck,  6  Crancb,  87, 128  ;  Dartmouth  College  v.  Woodward, 
4  Wheat.  518,  625  ;  Licingston  v.  Darliiigton,  101  U.  S.  407. 

Whether  the  nninufactiire  of  oleomargarine,  or  imitation  batter,  of 
tlie  kind  described  in  the  statute,  is,  or  may  be,  conducted  in  such  a 
way,  or  with  such  skill  and  secrec}',  as  to  baffle  ordinary  inspection,  or 
whether  it  involves  such  danger  to  the  public  health  as  to  require,  for 
the  protection  of  the  people,  the  entire  suppression  of  the  business, 
rather  than  its  regulation  in  such  manner  as  to  permit  the  manufacture 
and  sale  of  articles  of  that  class  that  do  not  contain  noxious  ingredients, 
are  questions  of  fact  and  of  public  policy  which  belong  to  the  legislative 
department  to  determine.  And  as  it  does  not  appear  upon  the  face  of 
the  statute,  or  from  any  facts  of  which  the  court  must  take  judicial 
cognizance,  that  it  infringes  rights  secured  by  the  fundamental  law,  the 
legislative  determination  of  those  questions  is  conclusive  upon  the  courts. 
It  is  not  a  part  of  their  functions  to  conduct  investigations  of  facts 
entering  into  questions  of  public  polic}'  merely,  and  to  sustain  or  frus- 
trate the  legislative  will,  embodied  in  statutes,  as  the}'  ma}-  happen  to 
approve  or  disapprove  its  determination  of  such  questions.  The  power 
which  the  legislature  has  to  promote  the  general  welfare  is  very  great, 
and  the  discretion  which  that  department  of  the  government  has,  in  the 
emplo3'ment  of  means  to  that  end,  is  very  large.  While  both  its  power 
and  its  discretion  must  be  so  exercised  as  not  to  impair  the  fundamental 
rights  of  life,  liberty,  and  property  ;  and  while,  according  to  the  prin- 
ciples upon  which  our  institutions  rest,  "  the  ver}-  idea  that  one  man 
may  be  compelled  to  hold  his  life,  or  the  means  of  living,  or  an}*  material 
right  essential  to  the  enjoyment  of  life,  at  the  mere  will  of  another, 
seems  to  be  intolerable  in  an}'  country  where  freedom  prevails,  as  being 
the  essence  of  slavery  itself;"  yet,  "in  many  cases  of  mere  adminis- 
tration, the  responsibility  is  purely  political,  no  appeal  lying  except  to 
the  ultimate  tribunal  of  the  public  judgment,  exercised  either  in  the 
pressure  of  public  opinion  or  by  means  of  the  suffrage."  Ylck  Wo  v. 
JIo2)lcins,  1 18  U.  S.  370.  The  case  before  us  belongs  to  the  latter  class. 
The  Legislature  of  Pennsylvania,  upon  the  fullest  investigation,  as  we 
must  conclusively  presume,  and  upon  reasonable  grounds,  as  must  be 
assumed  from  the  record,  has  determined  that  the  prohibition  of  the 
sale,  or  offering  for  sale,  or  having  in  possession  to  sell,  for  purposes  of 
food,  of  any  article  manufactured  out  of  oleaginous  substances  or  com- 
pounds other  than  those  produced  f'-om  unadulterated  milk  or  cream 
from  unadulterated  milk,  to  take  the  place  of  butter  produced  from  un- 
adulterated milk  or  cream  from  unadulterated  milk,  will  promote  the 
public  health,  and  prevent  frauds  in  the  sale  of  such  articles.  If  all  that 
can  be  said  of  this  legislation  is  that  it  is  unwise,  or  unnecessarily 
oppressive  to  those  manufacturing  or  selling  wholesome  oleomargarine, 
as  an  article  of  food,  their  appeal  must  be  to  the  legislature,  or  to  the 
ballot-box,  not  to  the  judiciary.  The  latter  cannot  interfere  without 
usurping  powers  committed  to  another  department  of  government. 

It  is  argued,  in  behalf  of  the  defendant,  that  if  the  statute  in  question 


CHAP.  IV.]  POWELL   V.   PENNSYLVANIA.  643 

is  sustained  as  a  valid  exercise  of  legislative  power,  then  nothing  stands 
in  the  waj^  of  the  destruction  b}-  the  legislative  department  of  the  con- 
stitutional guarantees  of  liberty  and  property.  But  the  possibility  of 
the  abuse  of  legislative  power  does  not  disprove  its  existence.  That 
possibilit3'  exists  even  in  reference  to  powers  that  are  conceded  to  exist. 
Besides,  the  judiciarj'  department  is  bound  not  to  give  effect  to  statutory 
enactments  that  are  plainly  forbidden  by  the  Constitution.  This  dut}', 
the  court  has  said,  is  always  one  of  extreme  delicacy  ;  for,  apart  from 
the  necessity  of  avoiding  conflicts  between  co-ordinate  brandies  of  the 
government,  whether  State  or  national,  it  is  often  difficult  to  determine 
whether  such  enactments  are  within  the  powers  granted  to  or  possessed 
b}'  the  legislature.  Nevertheless,  if  the  incompatibility  of  the  Constitu- 
tion and  the  statute  is  clear  or  palpable,  the  courts  must  give  effect  to 
the  former.  And  such  would  be  the  dut}-  of  the  court  if  the  State  legis- 
lature, under  the  pretence  of  guarding  the  public  health,  the  public 
morals,  or  the  public  safety,  should  invade  the  rights  of  life,  liberty,  or 
property',  or  other  rights,  secured  bj'  the  supreme  law  of  the  land. 

The  objection  that  the  statute  is  repugnant  to  the  clause  of  the  Four- 
teenth Amendment  forbidding  the  denial  by  the  State  to  any  person 
within  its  jurisdiction  of  the  equal  protection  of  the  laws,  is  untenable. 
The  statute  places  under  the  same  restrictions,  and  subjects  to  like 
penalties  and  burdens,  all  who  manufacture,  or  sell,  or  offer  for  sale,  or 
keep  in  possession  to  sell,  the  articles  embraced  by  its  prohibitions  ; 
thus  recognizing  and  preserving  the  principle  of  equality  among  those 
engaged  in  the  same  business.  Harbier  v.  Connolly^  113  U.  S.  27; 
Soo)i  Hhig  V.  Croidey,  113  U.  S.  703  ;  Jlissowi  Pacific  Hallway  Co. 
V.  Humes,  115  U.  S.  512,  519. 

It  is  also  contended  that  the  Act  of  May  21,  1885,  is  in  conflict  with 
the  Fourteenth  Amendment  in  that  it  deprives  the  defendant  of  his 
propert}'  without  that  compensation  required  by  law.  This  contention 
is  without  merit,  as  was  held  in  Muyler  v.  Kansafi. 

Upon  the  whole  case,  we  are  of  opinion  that  there  is  no  error  in  the 
judgment,  and  it  is,  therefore.  Affirmed} 

[Field,  J.  gave  a  dissenting  opinion  in  the  course  of  which  he  said  : 
"  Two  questions  are  thus  distincth*  presented  :  first,  whether  a  State 
can  lawfully  prohibit  the  manufacture  of  a  health}'  and  nutritious  article 
of  food  designed  to  take  the  place  of  butter,  out  of  an_y  oleaginous  sub- 
stance, or  compound  of  the  same,  other  than  that  produced  from  pure 
milk  or  cream,  and  its  sale  when  manufactured  ?  and,  second,  whether 
a  State  can,  without  compensation  to  the  owner,  prohibit  the  sale  of  an 
article  of  food,  in  itself  healthy  and  nutritious,  which  has  been  manu- 
factured in  accordance  with  its  laws  ? 

"  These  questions  are  not  presented  in  the  opinion  of  the  court  as 
nakedl}'  and  broadly  as  here  stated,  but  they  nevertheless  truly  indicate 
the  precise  points  involved,  and  nothing  else.  .  .  . 

1  See  Weidemanv.  The  State,  56  N.  W.  Rep.  688  (Jfinn.  1893).— Ed. 


b- 


644  POWELL   V.    PENXSYLVAXLV.  [CHAP.  IV. 

"  It  is  the  clause  [of  the  Fourteenth  Amendment]  declaring  that  no 
State  shall  '  deprive  an}-  person  of  life,  liberty,  or  property  without  due 
process  of  law,'  which  applies  to  the  present  case.  This  provision  is  found 
in  the  constitutions  of  nearly  all  the  States,  and  was  designed'to  prevent 
the  arbitrary'  deprivation  of  life  and  liberty',  and  the  arbitrary  spoliation 
of  property.  As  I  said  on  a  former  occasion,  it  means  that  neither  can 
be  taken,  or  the  enjoyment  thereof  impaired,  except  in  the  course  of  the 
regular  administration  of  the  law  in  the  established  tribunals.  It  has 
always  been  supposed  to  secure  to  every  person  the  essential  conditions 
for  the  pursuit  of  happiness,  and  is  therefore  not  to  be  construed  in  a 
narrow  or  restricted  sense.     Ex  parte   Virginia,  100  U.  S.  339,  3G6. 

"By  '  libert}','  as  thus  used,  is  meant  something  more  than  freedom 
from  physical  restraint  or  imprisonment.  It  means  freedom  not  merely 
to  go  wherever  one  may  choose,  but  to  do  such  acts  as  he  may  judge 
best  for  his  interest  not  inconsistent  with  the  equal  rights  of  others  ; 
,  that  is,  to  follow  such  pursuits  as  may  be  best  adapted  to  his  faculties, 

^'  and  which  will  give  to  him  the  highest  enjoyment.  As  said  by  the  Court 
of  Appeals  of  New  York,  in  Feople  v.  Marx^  'the  term  "  liberty,"  as 
protected  b}'  the  Constitution,  is  not  cramped  into  a  mere  freedom  from 
physical  restraint  of  the  person  of  the  citizen,  as  b}-  incarceration,  but 
is  deemed  to  embrace  the  right  of  man  to  be  free  in  the  enjoyment  of 
the  faculties  with  which  he  has  been  endowed  by  his  Creator,  subject 
onh'  to  such  restraints  as  are  necessary  for  the  common  welfare,'  99 
N.  Y.  377,  38G  ;  and  again,  I)i  the  Matter  of  Jacobs :  '  Libert}-,  in  its 
broad  sense,  as  understood  in  this  country,  means  the  right  not  only  of 
freedom  from  actual  servitude,  imprisonment,  or  restraint,  but  the  right 
of  one  to  use  his  faculties,  in  all  lawful  ways,  to  live  and  work  where 
he  will,  to  earn  his  livelihood  in  any  lawful  calling,  and  to  pursue  any 
lawful  trade  or  vocation.'     98  N.  Y.  98. 

"  With  the  gift  of  life  there  necessarily  goes  to  every  one  the  right  to 
do  all  such  acts,  and  follow  all  such  pursuits,  not  inconsistent  with  the 
equal  rights  of  others,  as  may  support  life  and'  add  to  the  happiness  of 
its  possessor.  The  right  to  pursue  one's  happiness  is  placed  by  the 
Declaration  of  Independence  among  the  inalienable  rights  of  man,  with 
which  all  men  are  endowed,  not  by  the  grace  of  emperors  or  kings,  or 
by  force  of  legislative  or  constitutional  enactments,  but  by  their  Creator ; 
and  to  secure  them,  not  to  grant  them,  governments  are  instituted 
among  men.  The  right  to  procure  healthy  and  nutritious  food,  by  which 
life  may  be  preserved  and  enjoyed,  and  to  manufacture  it,  is  among 
these  inalienable  rights,  which,  in  my  judgment,  no  State  can  give  and 
no  State  can  take  away  except  in  punishment  for  crime.  It  is  involved 
in  the  right  to  pursue  one's  happiness.  This  doctrine  is  happily  ex- 
pressed and  illustrated  in  People  v.  Marx,  cited  above,  where  the 
precise  question  here  was  presented."]  ^ 

^  "Our  American  constitutions  .  .  .  are  historical  instruments,  the  possessions  of  a 
people  with  a  le2;al  history  be2;innin2j,  not  with  the  Declaration  of  Independence,  but 
with  tliat  of  their  English  brethren.     They  are  not  the  beginning,  but  the  end ;  lor 


JIMk\    1^^     ^M    "^V^    iACCv^^tA/^  (V£     ~tU<  •^l^TvAysXilutMM^ 


CHAP.  IV.]  POWELL  V.  pi:nnsylvania.  645 

they  represent  the  last  stage  iu  a  series  of  changes,  the  great  Landmarks  of  which  are 
the  Magua  Charta,  the  Petition  of  Right,  the  Habeas  Corpus  Act,  and  the  Bill  of 
Eights. 

"  It  is  obvious,  therefore,  that  one  who  seeks  to  put  a  true  construction  on  any  part  of 
our  constitutions  must  have  a  constauc  eye  to  its  history,  and  this  is  particularly  the 
case  when  one  is  dealing  with  a  clause  iu  a  bill  of  rights,  because  an  American  bill  of 
rights  is  a  collection  of  words  and  clauses,  many  of  wliich  have  had  a  definite  meaning 
for  centuries.  It  may  be  true  that  if  our  constitutions  are  to  meet  all  the  requirements 
of  a  constantly  advancing  civilization,  they  must  receive  a  broad  and  progressive  inter- 
pretation. It  is  also  true  that  upon  no  legal  principle  can  an  interpretation  be 
supported,  which  ignores  the  meaning  universally  accorded  to  a  word  or  clause  for 
centuries,  and  the  meaning  which  must,  therefore,  have  been  intended  by  those  who 
inserted  it  in  the  Constitution.  It  is  perhaps  well  to  bear  thi.s  in  mind  at  a  time  when 
there  is  a  manifest  tendency  to  regard  constitutional  prohibitions  as  a  panacea  for 
moral  and  political  evils,  to  look  upon  courts  of  law,  as  distinguished  from  legislatures, 
as  the  only  real  protectors  of  individual  rights,  and  to  trust  to  the  courts  for  remedies 
for  evils  resulting  entirely  from  a  failure  to  attend  to  political  duties,  — at  a  time,  that 
is  to  say,  when  there  is  danger  of  loose  and  unhistorical  constitutional  interpre- 
tation. .  .  . 

"  It  may,  however,  be  contended  that  although  the  term  "  liberty '  is  not  used  in  the 
clauses  under  discussion  in  its  broadest  sense  to  include  all  the  riglits  one  has  iu  a  body 
politic,  it  does  include  other  great  and  important  rights  besides  that  of  personal  liberty, 
as,  for  example,  religious  liberty,  liberty  of  speech  and  of  press,  liberty  to  bear  arms, 
of  petition  and  discussion,  liberty  to  obtain  justice  in  the  courts,  and  many  others,  all 
of  which  are  to-day  regarded  as  fundamental  rights  iu  this  country. ^  It  may  be  argued, 
iu  other  words,  that  the  term  '  liberty '  is  a  broader  one  than  the  terms  used  in  Magna 
Charta,  and  may  well  be  interpreted  to  include  other  rights  besides  that  of  personal 
freedom,  for  the  reason  that  it  was  probably  intended  so  to  do  by  the  framers  of  our 
constitutions.  There  are  several  answers  to  this  argument.  In  the  first  place,  the 
clauses  iu  our  American  constitutions  are,  as  we  have  seen,  mere  copies  of  the  thirty- 
ninth  article  of  Magna  Charta,  which  knows  nothing  of  such  rights  as  the  above.  In 
the  second  place,  the  term  'liberty,'  while  it  was  not  used  in  the  thirty-ninth  article, 
was  used  in  its  present  connection  with  the  terms  '  life  '  and  '  property '  long  before 
the  framing  of  our  American  constitutions,  and  when  so  used  meant  simply  personal 
liberty.  It  would,  therefore,  naturally  be  used  by  the  framers  of  our  constitutions  in 
that  sense.  To  establish  this  it  is  only  necessary  to  refer  to  Blackstone.  In  one  place 
Blackstone  remarks  :  'The  Great  Charter  protected  every  individual  of  the  nation  in 
the  free  enjoyment  of  his  life,  liberty,  and  property  unless  declared  to  be  forfeited  by 
the  judgment  of  his  peers  or  the  law  of  the  land,'  referring,  of  course,  to  the  thirty- 
ninth  article.  In  another  place  he  discusses  the  subject  more  at  length,  and  after  de- 
fining the  absolute  rights  of  individuals,  '  which  are  usually  called  their  liberties,'  to 
be  '  those  rights  which  are  so  in  their  primary  and  strictest  sense,  such  as  would  belong 
to  their  persons  merely  in  a  state  of  nature,  and  which  every  man  is  entitled  to  enjoy 
whether  out  of  society  or  in  it,'  he  goes  on  to  enumerate  them  :  '  These  rights  mav 
be  reduced  to  three  principal  or  primary  articles :  the  right  of  personal  security ' 
(under  which  he  includes  life,  limb,  health,  and  reputation,  the  same  rights  which  Coke 
and  other  commentators  on  the  thirty-ninth  article  include  under  the  terms  '  aliquo 
niodo  destruatur,'  and  which  may  fairly  be  included  under  the  term  '  life  '  in  our  con- 
stitutions), 'the  right  of  personal  liberty,  and  the  right  of  private  property,  because,  as 
there  is  no  other  known  method  of  compulsion  or  of  abridging  man's  natural  free  will 
but  by  an  infringement  of  one  or  the  other  of  these  important  rights,  the  preservation 
of  these,  inviolate,  may  justly  be  said  to  include  the  preservation  of  our  civil  immunities 
in  their  largest  and  most  extensive  sense.'     1  Bl.  Corn's,  chapter  on  'Absolute  Rights 

^  See  Judge  Cooley's  discussion  of  tlie  Fourteenth  Amendment  in  the  Appendix  of 
his  edition  of  Story  on  tlie  Constitution.  See  also  his  discussion  of  "  Civil  Rights  "  in 
the  "  Principles  of  Constitutional  Law." 


':aU       646 


MISSOUKI   PAC.    R'Y   CO.   V.   iMACKEY.  [CHAP.  IV. 


"^  .uAi^^'^<  In  3lLouri  Pac.  K>j  Co.  v.  31ackey,  127  U.  S.  205  (1888).  In 
^aJ/^  holding  valid  u  law  of  the  State  of  Kansas  which  made  railroad  eoin- 
7  y  panies  resi)onsil)le  to  its  servants  for  injuries  from  the  nc<>,li$2,encc  or 
y*-^^"^  luiscondnct  of  their  fellow-servants,  Mii.  Jistici-:  Field,  for  the  court, 
i  Wljy'i  said  :  "  The  objeetion  that  the  law  of  1871  deprives  the  railroad  com- 
,  /  panies  of  the  equal  protection  of  the  laws  is  even  less  tenable  than  the 
^■Vw)r  Q,^(3  considered.  It  secuis  to  rest  upon  tlie  theory  that  legislation  which 
AAjtXi^jw  is  special  in  its  character  is  necessarily  within  the  constitutional  iiihil)i- 
^  y  y.  tion  ;  but  nothin.<>:  can  be  further  from  the  fact.  The;  orcatnr  pnrt  of  all 
k'uislation  is  special,  either  in  the  ol)iects  sought  to  be  attained  by  it, 
,  '^^^  or  in  the  extent  of  its  application.  Laws  for  the  improvement  of  muni- 
^yi4j^  cipalities,  the  opening  and  widening-  of  particular  streets,  the  intro- 
duction of  water  and  <zas,  and  other  ai'rangements  for  the  safety  and 
}  ijX/L~  convenience  of  their  inhabitants,  and  laws  for  the  irrioation  and  drain- 
/'  age  of  particular  lands,  for  the  construction  of  levees  and  the  bridoino; 

/         of  navigable  rivers,  are  instances  of  this  kind.     Such  legislation  does 

f    '        AJL  ^^  Persons.'     Blackstone  defines  personal  liberty  to  be  the 'power  of  locomotion,  of 

"^"/^^^^  cliaugiug  situation,  or  moving  one's  person  to  whatever  place  one's  inclination  may 

^  ^  direct,  without  imprisonment  or  restraint,  unless  by  due  course  of  law,'  and  he  ob- 

li/L'^^fU,^    serves  that  it  is  perhaps  the  most  important  of  all  civil  rights.     He  means  by  personal 

ji   t  irf  liberty  simply  freedom  from  restraint  of  the  person.     It  is  instructive  to  note  that 

y  Blackstone,  in  discussing  each  '  absolute '  right,   points  out  that  it  is  declared  and 

X^t<AV  secured  bv  the  famous  article  of  the  Great  Charter.     He  cites  the  words  '  nullus  liber 

0    . .  homo  aliquo  modo  destruatur '  as  the  constitutional  security  for  the  right  of  life  or 

■omJ^        personal  security ;    the  words  '  capiatur  vel  imprisouetur '  for  the  right  of  personal 

/  liberty,  and  the  words  '  dissaisiatur  de  libero  tenemento  '  for  the  right  of  private  prop- 

■^yC  g^|.y      n  js  evident,  therefore,  that  his  classification  of  fundamental  rights  under  the 

/  terms  'life,'  'liberty,'  and  'property,'  like  that  of  all  other  commentators,  is  derived 

'*"  from  the  thirty-ninth  article.     It  is  evident,  also,  that  he  had  no  conception  of  religious 

C^rU/ztX'  liberty,  liberty  of  press  and  speech,  or  political  liberty  (meaning  thereby  the  right 

to  take  part  in  the  government,  e.fj.,  the  right  to  vote)  as  absolute  rights  of  individuals. 

-.'     /,  j^  They  are  not  mentioned  in  his  discussion  of  the  subject.     He  does,  indeed,  name  cer- 

"^  ,  tain' other  important  individual  rights  besides  tho.se  of  life,  personal  freedom,  and 

jttX-ifW,        propertv,  such  as  the  right  of  petition,  of  securing  justice  in  the  cotxrts,  and  of  bearing 

arms;  but  he  says  that  these  'serve  principally  as  networks  or  barriers  to  protect  and 

.lA^  maintain  inviolate  the  three  great  and  primary  rights.' 

"  In  '  Care's  English  Liberties,'  a  collection  of  important  English  charters  which 

^^'^^'^  had  a  wide  circulation  in  the  American  colonies,  the  fifth  edition  of  which  -was  pub- 

/  ILshed  in  Boston  in  1721,  we  find  the  same  classification  of  rights  in  the  same  terms, 

AooAAXiA.    ^^^j  .^  every  case  the  term  '  liberty'  is  explained  to  mean  freedom  of  the  person  from 

I      If  I    restraint.     For  example,  in  his  comment  on  the  Habeas  Corpus  Act,  the  author  says  : 

\M  iiM^    'There  are  three  things  which  the  law  of  England  (which  is  a  law  of  mercy)  prinei- 

Jj^  pally  regards  and  taketh  care  of,  viz.,  life,  liberty,  and  estate.     Next  to  a  man's  life  the 

JA^^^4^       nearest  thing  that  concerns  him  is  freedom  of  his  person  ;  for  indeed,  what  is  imprison- 

'      /  ment  lint  a  kind  of  civil  death  ?     Therefore,  saith  Fortescue,  cap.  42,  the  laws  of  Eng- 

'J^lAMfl..    land  do,  in  all  cases,  favor  liberty.     The  writ  of  habeas  corpus  is  a  remedy  given  by 

the  common  law,  for  such  as  were  unlawfully  detained  in  custody,  to  procure  their 

UaA»ft^     liberty.'     Care's  English  Liberties  (Ed.  1721 )   p.  18.5. 

"  Chancellor  Kent  made  precisely  the  same  enumeration  of  fundamental  rights,  with 

(jJia/MV^    religious  liberty  added  as  a  distinct  and  separate  right.     Kent's  Corn's,  vol.  2,  chap.  \. 

,     There  is  no  suggestion  of  its  being  included  in  the  clauses  in  question.  "  —  Meaitiny  of 

C/fWVUjy '  the  term  "  Liberti/  "  in  Federal  and  State  Constitutions,  by  Charles  E.  Shattuck,  4 

I  Harv.  Law  Ilgv.  365.  —  Ed.  ,    ,  _-,     /i 


«{o  < 


CIIAr.  lY.]  SPENCER   V.    MERCHANT.  647 

not  infringe  upon  the  clause  of  the  Foux'teentli  Amendment  requirino; 
oqnn.l  protection  of  the  laws,  because  it  is  special  in  its  eliaracter  ;  if  in_ 
conflict  at  all  witli  that  clause,  it  must  be  on  other  grounds.  And  when 
legislation  applies  to  particular  bodies  or  associations,  imposing;  upon 
them  additional  liabilities,  it  is  not  open  to  the  o]>Jeotion  tliat  it  denies 
to  them  the  equal  protection  of  the  laws,  if  all  ijersons  brought  under 
its  influence  are  treated  alike  under  the  same  conditions.  A  law  giving 
to  mechanics  a  lien  on  buildings  constructed  or  repaired  b}'  them,  for 
the  amount  of  their  work,  and  a  law  requiring  railroad  corporations  to 
erect  and  maintain  fences  along  their  roads,  separating  them  from  land 
of  adjoining  proprietors  so  as  to  keep  cattle  off  their  tracks,  are  in- 
stances of  this  kind.  Such  legislation  is  not  obnoxious  to  the  last 
clause  of  the  F'ourteenth  Amendment,  if  all  persons  subject  to  it  are 
treated  alike  under  similar  circumstances  and  conditions  in  respect  /  />  u{Ji 
P  both  of  the  privileges  conferred  and  the  liabilities  imposed.   Cttis  con- 

i~ lifux.    ceded  that  corporations  are  persons  within  the  meaiiing  of  the  amend- 
ment.    /Santa  Clara  Count (/  v.  Southern  Pacific  liailroad  Company^ 
\rtA  "Ve^llS  U.  S.  394  ;  Pembina  Consolidated  Silcer  Mining  and  Milling  Co. 
(_j(jjl       V.  Pennsylvania,  125  U.  S.  187.     But  the  hazardous  character  of  the 
business  of  operating  a  railway  would  seem  to  call  for  special  legisla- 
/hfiifUi.       tion  with   respect  to  railroad   corporations,  having  for  its  object  the 
w      ^         protection  of  their  emijloyes  as  well  as  the  safety  of  the  ]:)ublic.     The 
'  0  (^  'H ,      business  of  other  corporations  is  not  subject  to  similar  dangers  to  their 
employes,  and  no  objections,  therefore,  can  be  made  to  the  legislation 
on   the  ground  of  its  making  an  unjust  discrimination.     It  meets  a 
particular  necessity,  and  all  railroad  corporations  are,  without  distinc- 
tion, made  subject  to  the  same  liabilities.     As  said  by  the  court  below, 
it  is  simply  a  question  of  legislative  discretion  whether  the  same  liabili- 
ties shall  be  applied  to  carriers   b}'  canal  and  stage  coaches  and  to 
persons  and  corporations  using  steam  in  manufactories.     See  Missouri 
Pacific  Railway  Co.  v.  Humes,  115  U.  S.  512,  523  ;  Barhicr  v.  Con- 
nolly, 113  U.  S.  27  ;  Soon  Hing  v.  Crowley,  113  U.  S.  703. 

.  ■,  Judgment  affirmed." 

<^    '  ^_  .%^^    ^      ^^^ 

/  SPENCER  V.  MERCHANT.  AaIui^'^^^?  j^  u^ 

Supreme  Court  of  the  United  States.     1888.      ^  a^ti^^y:^  *^  ^^^^^ 

[125  U.  S.  345.]  1  ^a^^     jjiTi.-  <^  ^ 

This  case  was  submitted  to  the  general  term  in  Kings  County  of  the  -'^^"^^    JQ 

Supreme  Court  of  the  State  of  New  York  under  §  1279  of  the  Code  of  ^f^^y:,^.,^^:^^ 

Civil  Procedure,  without  process,  upon  an  agreed  statement  of  facts         /       ^^^ 

signed  by  the  parties,  the  substance  of  which,  and  of  the  statutes  therein       /        > 

referred  to,  was  as  follows  :   .   .   .   [^ be  plaintifl^  agreed  to  sell  certain     ^ ^^"^^ 

/?       ^  '^/     ■" 

1  The  statement  of  facts  is  shorteued.  —  Ei>.  -W/M>  ^     a^kAAAA-*-^^ 

/^-^^c^-^l^  c)LCJt^^^^^jiLSL  (A<  cM^yL  /241Ajl  <y^Tij2  rJvvuyV^   x/x^.^.^^ J^ 


a/ui 


Pc 


648 


SPENCER   V.    MERCHANT, 


^cJi    to 


[chap.  IV. 


land  to  the  defendant,  and  to  give  a  deed  with  a  covenant  against  all 
inciunhianccs.  Tiie  defendant  ))aid  a  part  of  the  consideration,  and  in 
examining  the  title  I'ound  an  unpaid  assessment  on  the  land  for  the 
opening  of  a  street.] 

The  case  stated  b}-  the  parties,  after  setting  forth  the  foregoing  facts, 
continued  and  concluded  as  follows  : 
;Xu<*i*>t^^    ^^  The  plaintiff  claims  that  said  assessment  of  1881  in  question  is  not 
I       .  a  lien  or  cloud  on  the  title  to  said  premises  ;  and  tlie  defendant  refuses 

'^'*^    /       to  pay  the  balance  of  said  consideration  until  the  plaintiff  allows  it  to 
jj:>a.  tik,       be  deducted  from  the  consideration  money  or  ])avs  the  same,  neither 
_  of  w^hich  is  the  plaintiff  willing  to  do  ;  and^the  plaintiff  also  claims  that 
the  statute  of  1881,  c.  G89,  is  unconstitutional,  and  therefore  void,  for 
<iaK  *q    the  reason  that  it  is  an  attem])t  made  by  the  legislature  of  this  State 
/  to  validate  a  void  assessment  (and  to  do  the  same  without  giving  the 

'"/^  property-holders  an  opportunity  to  be  heard  as  to  the  total  amount  of 
ioJajui^  the  assessment,  only  providing  for  a  hearing  on  the  ai:)portionment), 
which  was  levied  upon  said  premises  under  and  pursuant  to  c.  217  of 
the  laws  of  1869,  as  amended  b}-  c.  619  of  the  laws  of  1870  ;  and  that 
the  statute  of  1881  is  clearly  void  for  the  further  reasons  that  the  defect 
in  the  former  assessment  was  jurisdictional,  and  it  has  been  so  declared 
and  decided  by  the  Court  of  Appeals  in  the  case  of  Stuart  v.  Palmer, 
74  N.  Y.  183,  and  is  special  and  invidious,  and  unjustly  and  illegally 
apportioned  upon  certain  individuals  without  reference  to  a  uni form 
standard,  and  is  an  arbitrary  exaction,  and  is  levied  on  an  individual 
or  individuals  to  the  exclusion  of  others  in  the  same  district.  Tlie 
defendant  doubts  the  said  claim  of  the  plaintiff.  The  question  sub- 
mitted to  the  court  upon  this  case  is  as  follows : 

"  Is  the  assessment  levied  on  the  property-  in  1881  in  question  a  good 
.  and  valid  lien  or  cloud  on  said  t^roperty? 

<./<    -^  ^t^      tt  If  this  question  is  answered  in  the  affirmative,  then  judgment  is  to 
aMny^-fi^i  be  rendered  in  favor  of  the  defendant  and  against  the  plaintiff,  requir- 
ing the  plaintiff  to  pay  said  assessment  to  deliver  a  deed  according  to 
contract. 

"If  it  be  answered  in  the  negative,  then  judgment  is  to  be  rendered 
in  favor  of  the  plaintiff,  requiring  the  defendant  to  take  title  to  said 
premises  in  accordance  with  the  contract  above  mentioned,  without  the 
plaintiff  paying  said  assessment  or  tax,  and  without  deducting  the  same 
out  of  the  consideration  money." 

The  Supreme  Court  of  New  York  gave  judgment  for  the  defendant, 
and  the  plaintiff  appealed  to  the  Court  of  Appeals,  which  affirmed  the 
judgment  and  remitted  the  case  to  the  Supreme  Court.  100  X.  Y.  585. 
The  plaintiff  sued  out  this  writ  of  error,  and  assigned  for  error  that  it 
appeared  b}'  the  record  that  1)oth  those  courts  held  that  the  statute  of 
1881,  c.  689,  ami  the  proceedings  under  it  were  constitutional  and 
valid.   "  whereas  the   said   courts  sliould  have  decided  that  the  said 


statute  and  the  proceedings  thereunder  were  in  violation  of  the  Consti- 
tution of  the  United  States  and  were  void,  for  the  reason  that  they 


>u 


jL         (V«->\_i:^    \«^v-t-<^ 


'J- 


0^/-^ety\, 


t^  XreKXLA^ 


A/* 


iP         QuJv.  fiU  ,^kii'Un<.  ^  0-^  ruusMA  MTtljL  Xcl^c<  ay^^^Uy^^^^  -Oi/m 

CHAP,  IV.]  SPENCER   V.   MERCHANT.  ^^^  S)  ^^rtAPuU 

deprived  the  said  |)laiiitilT  aud  the  other  persons  assessed  thereunder  of  C  <V4^  ^> 

their  property  witliout  due  process  of  hiw."  -hi  ri  ol. 

3Ir.  3Iatthew  Hale  and  3Ir.  Albert  Day,  for  plaintiff  in  error.  TU<Xa 

31r.  Walter  E.  'Ward,  for  defendant  iu  error.  ^oM^ 

Mr.  Justice  Gray,  after  stating  the  case  as  above  reported,  delivered  /xr^/^jLaAJ^ 
the  opinion  of  the  court. 

The  leading  facts  of  this  case  are  as  follows :  The  original  assess-  IaM.  ^'^^^ 
ment  of  the  expenses  of  regulating;,  grading  and  preparing  the  street  /jj^^sj/^^,  K 
for  travel  was  laid  by  commissioners,  as  directed  by  §  -i  of  the  statute  (    ^      /» 
of   18G9,  upon  all  tlic  lands  lying  within  three  hundred  feet  on  either  -^^'^'^^^  '^ 
side  of  the  street,  and  which,  in  the  judgment  of  the  connnissioners,  ^ 
would  be   benefited  by  the  improvement.     After  the  sums  so  assessed 
upon  some  lots  had   been  ])aid,   the  Court  of  Appeals  of  the   vState 
declared  that  assessment  void,J)ccause  the  statute  (although  it  made 
ample  provision  for  notice  of  aud  hearing  upon  the  previous  assessment 
for  laying  out  the  street  under  §  3),  provided  no  means  by  which  the  /(j-^uti^  S/j 
land-owners  might  have  any  notice  or  opportunity  to  be  heard  in  regard  .       \ 
to  the  assessment  for  regulating,  grading,  and  prei^ariug  the  street  for  <  ^  (J^^ 
travel  under  §  4.     Stuart  v.  Palmer^  74  N.  Y.  183.    The  lots,  the  sums  ^-t—^J/nj^,^ 
assessed  upon  which  had  not  been  paid,  were  isolated  parcels,  not  con- 
tiguous, and  some  of  them  not  fronting  upon  the  street.    By  the  statute  O/yiJi^A' 
of  1881,  a  sum  equal  to  so  much  of  the  original  assessment  as  remained  ^j     •    ^ 
unpaid,   adding  a  proportional   part  of  the  expenses  of  making  that  ^>''d/\  -^^ 
assessment,  and  interest  since,  was   ordered  by  the  legislature  to  be  ('^■Jfs^-^jJ^ 
levied  and  equitably  apportioned  by  the  suijcrvlsors  of  the  county  upon  .     XJuji 
and  among  these  lots,  after  public  notice  to  all  parties  interested  to  /     , 
appear  and  be  heard  upon  the  question  of  such  apportionment ;  and  ^^JJ^-^iAJ^ 
that  sum  was  levied  and  assessed  accordingly  upon  these  lots,  one  of  /V  %ij>, 
which  was  owned  by  the  i)laintit¥.  a^  •    f-jh 

The  question  submitted  to  the  Supreme  Court  of  the  State   was  '^^''^^ 

whether  this  assessment  on  the  plaintiff's  lot  was  valid.     He  contended  "-K  ^  p^ 

that  the  statute  of  1881  was  unconstitutional  and  void,  because  it  was  _^        x. 

an  attempt  by  the  legislature  to  validate  a  void  assessment,  without  t^AX^ 

giving  the  owners  of  the  lands  assessed  an  opportunity  to  be  heard  Aj<  fi^  ^^ 

upon  the  whole  amount  of  the  assessment.    He  thus  directly,  and  in  apt  y%^j  J^ 

words,  presented  the  question  whether  he  had  been  unconstitutionally  ^ 

deprived  of  his  property  without  due  process  of  law,  iu  yiolation  of  the  ^yi^i^i^t^ 

first  section  of  the  Fourteenth  Amendment  to  the  Constitution  of  the  rjjCtff- 

United  States,  as  well  as  of  ai't.  1,  sec.  7,  of  the  Constitution  of  New  .          . 

York  ;  and  no  specific  mention  of  either  constitutional  provision  was  /0'1,**yV^ 

necessary  in  order  to  entitle  him  to  a  decision  of  the  question  by  o 

an}'  court  having  jurisdiction  to  determine  it.     The  adverse  judgment  \JLAy>^^ 

of  the  Supreme  Court,  affirmed  by  the  Court  of  Appeals  of  the  State,  ^  i^CU"^ 

necessarily  involved  a  decision  against  a  right  claimed  under  the  Four-  0 
teenth  Amendment  to  the  Constitution  of  the  United  States,  which  this 


court  has  Jurisdiction  to  review.     Bridge  Proprietors  v.  Ilohoken  Co..    Ai^fyi4/U 
1  Wall.  116,  142  ;  3Iurray  v.  Charleston,  96  U.  S.  432,  442  ;  Furman  f^^^ 


AX  iJtcOJCA.^^'a'^'^-'rvv    v/w^    iw^--'  -  ,    -  ^ 


650  SPENCi:R   t".    MERCHANT.  [CHAP.  IV. 

V.  Nichol,  8  ^Yilll.  44,  oG  ;    Chicago  Life  las.  Co.  v.  Needles.,  113  U.  S. 
574,  579. 

The  jurisdiction  of  this  court,  as  is  well  luulerstood,  docs  not  extend 
to  a  review  of  the  iud.L!,ment  of  the  State  court,  so  far  us  it  depended 
upon  the  Constitution  of  tlie  State.  Provident  Inslitalion  for  Savings 
V.  Jersey  City,  113  U.  S.  506,  514.  Yet,  as  the  words  of  the  two  con- 
stitutions are  alike  in  this  respect,  the  decisions  of  the  liighest  court  of 
the  State  upon  the  effect  of  these  words  are  entitled  to  great  weight. 
The  substance  of  the  former  decisions,  and  the  grounds  of  the  judg- 
ment sought  to  be  reviewed,  can  hardly  be  more  compactly  or  forcibly 
stated  than  the}'  have  been  by  Judge  Finch  in  delivering  the  opinion  of 
the  Court  of  Ai)peals,  as  follows  : 

' '  The  Act  of  1881  determines  absolutely  and  conclusively  the  amount 
of  tax  to  be  raised,  and  the  property  to  be  assessed  and  upon  which 
it  is  to  be  aDPortioned.  Each  of  these  things  was  within  the  power  of 
the  legislature,  whose  action  cannot  be  reviewed  in  the  courts  upon 
the  ground  that  it  acted  uniustly  or  without  appropriate  and  adequate 
reason.  Litchfield  v.  Vernon,  41  N.  Y.  123,  141 ;  People  v.  Brooklyn, 
4  N.Y.  427  ;  Peo2)le  v.  Fiagg,  46  N.  Y.  405  ;  Horn  v.  New  Lots,  83 
N.  Y.  100.;  Cooley  on  Taxation,  450,  The  legislature  may  commit  the 
ascertainment  of  the  sum  to  be  raised  and  of  the  benefited  district  to 
commissioners,  but  it  is  not  bound  to  do  so,  and  may  settle  both  ques- 
tions for  itself:  and  wlicn^  it  does  so,  its  action  is  necessarily  conclusive 
n,nd  beyond  review.  Here  an  improvement  has  been  orderetTand  made, 
the  expense  of  which  might  jnstl}'  have  been  imposed  upon  adjacent 
property  benefited  by  the  change.  By  the  Act  of  1881,  the  legislature 
imposes  the  unpaid  portion  of  the  cost  and  expense,  with  the  interest 
thereon,  upon  that  portion  of  the  property-  benefited  which  has  thus  far 
borne  none  of  the  burden.  In  so  doing,  it  necessarily  determines  two 
things,  viz.,  the  amount  to  be  realized,  and  the  property  specially 
benefited  by  the  expenditure  of  that  amount.  The  lands  might  have 
been  benefited  by  the  improvement,  and  so  the  legislative  determina- 
tion that  the}'  were,  and  to  what  amount  or  proportion  of  the  cost,  even 
if  it  may  have  been  mistakenlj'  unjust,  is  not  open  to  our  review.  The 
question  of  special  benefit  and  the  ])roperty  to  which  it  extends  is  of 
necessity  a  question  of  fact,  and  when  the  legislature  determines  it  in  a 
case  within  its  general  power,  its  decision  must  of  course  be  final.  We 
can  see  in  the  determination  reached  possible  sources  of  error  and 
perhaps  even  of  injustice,  but  we  are  not  at  liberty  to  say  tliat_the 
tax  on  the  property  covered  by  the  law  of  1881_wM^i_mposecljvUhout 
reference^to  ^j^ecial  benefits.  The  legislature  practically  determined 
that  the  lands  described  in  that  Act  were  peculiarly  benefited  by  the 
i m provement  to  a  certain  specified  amount  which  constituted  a  just  pro- 
portion of  the  whole  cost  and  expense  ;  and  while  it  may  be  that  the 
process  by  which  the  result  was  reached  was  not  the  best  attainable , 
and  some  other  might  have  been  more  accurate  and  just,  we  cannot  for 
that  reason  question  an  enactment  within  the  general  legislative  power- 


CHAP.  IV.]  SPENCER   V.    MERCHANT.  651 

That  power  of  taxation  is  unlimited,  except  that  it  must  be  exercised 
for  public  purposes.  Weismer  v.  Douglas,  G4  N.  Y.  91.  Certainly  if 
the  Acts  of  18G9  and  1870  had  never  been  passed,  but  the  improve- 
ment of  Atlantic  Avenue  had  been  ordered,  the  legislature  might  have 
imposed  one  part  or  proportion  of  the  cost  upon  one  designated  district 
and  the  balance  upon  another.  Practically  just  that  was  done  in  this 
case.  In  lie  Van  Antwerj),  56  N.  Y.  2GI,  an  assessment  for  a  street 
improvement  had  been  declared  void  by  reason  of  failure  to  procure 
necessary  consents  of  propert3--owners.  The  legislature  made  a  reas- 
sessment, imposing  two  thirds  of  the  expense  upon  a  benefited  district 
and  one  third  upon  the  city  at  large.  The  Act  was  held  valid  as  a  new 
assessment  and  not  an  effort  to  validate  a  void  one. 

"  These  views  furnish  also  an  answer  to  the  objection  that  the  only 
hearing  given  to  the  land-owner  relates  to  the  apportionment  of  the 
fixed  amount  among  the  lots  assessed,  and  none  is  given  as  to  the 
aggregate  to  be  collected.     No  hearing  would  open  the  discretion  of 
the  legislature,  or  be  of  any  avail  to  review  or  change  it.     A  hearing 
is  given   by  the  Act  as  to  the  apportionment  among  the  land-owners, 
■whicli  furnishes  to  them  an  opportunity  to  raise  all  pertinent  and  avail- 
able  questions,  and  dispute  their  liability,  or  its   amount  and  extent. 
The  precise  wrong  of  which  complaint  is  made  appears  to  be  that  the 
land-owners  now  assessed  never  had  opportunity  to  be  heard  as  to  the 
original  apportionment,  and  find  themselves  now  practically  ])ound  by 
it  as  between  their  lots  and  those  of  the  owners  who  paid.     But  that 
objection  becomes  a  criticism  upon  the  action  of  the  legislature  and  the 
process  by  which  it  determined  the  amount  to  be  raised  and  the  prop- 
erty  to  be  .assessed.     Unless  by  special  permission,  that  is  a  hearing 
never  granted  in  the  process  of  taxation.   yThe  legislature  determines 
expenditures  and   amounts  to  be  raised  for  their  payment,  the  whole 
discussion  and  all   questions  of  prudence   and   propriety'  and  justice 
being  confided  to  its  jurisdiction.  )  It  may  err,  but  the  courts  cannot 
review  its  discretion.     In  this  case,  it  kept  within   its  power  when  it 
fixed,  first,  the  amount  to  be  raised  to  discharge  the  improvement  debt 
ij  incurred  by  its  direction  ;  and,  second,  when  it  designated  tlie  lots  an^ 
(  .^)'    property,  which  in  its   judgment,  by  reason  of  special  benefits,  should 
V      y  ,^    V  bear  the  burden  ;  and  having  the  power,  we  cannot  criticise  the  reasons 
)0>^     ' i^  or  manner  of  its  action.     The  land-owners  were  given  a  hearing,  and 
vj        Aj     so  there  was  no  constitutional  objection  in  that  respect.     Nor  was  that 
''      iF  '     hearing  illusory.     It  opened  to  the  land-owner  an  opportunity  to  assail 
■^       .  tlie  constitutional  validity  of  the  Act  under  which  alone  an  apportion- 

V 

\ 


¥ „ 

y      \/^     possible  questions,   of  the   mode   and   amounts  of  the  apportionment 


ment  could  be  made,  and  that  objection  failing,  jt  opened  the  only  other 

'N^.\     itself.     We  think   the  Act  was  constitutional."     100  N.  Y.  587-589. 
JO        y        The  general  principles,  upon  which  that  judgment  rests,  have  been 
affirmed  b}'  the  decisions  of  this  court. 

/  Tiie  power  to  tax  belongs  exclusively  to  the  legislative  branch  of  the 
government.     United  States  v.  Xew  Orleans,  98  U.  S.  381,  392  ;  Meri- 


\ 


652  srENCEE  V.  merchant.  [chap.  iv. 

wether  v.  Garrett^  102  U.  S.  472.  In  the  words  of  Chief  Justice  Chase, 
condensing  wliat  had  been  said  long  before  by  Chief  Justice  Marshall, 
' '  The  judicial  department  cannot  prescribe  to  the  legislative  depart- 
ment limitations  upon  the  exercise  of  its  acknowledged  i)owcrs.  The 
power  to  tax  may  be  exercised  oppressively  upon  persons ;  but  the 
responsibility  of  the  legislature  is  not  to  the  courts,  but  to  the  people 
bv  whom  its  members  are  elected."  Veazie  Bank  v.  Fenno,  8  Wall. 
533,  548;  JlrCulloch  \.  JIaryland,  4  Wheat.  31G,  428;  Providence 
Bank  v.  Billings^  4  Pet.  514,  5G3.  See  also  Kirtland  v.  Ilotchkiss^ 
100  U.  S.  491,  497.  Whether  the  estimate  of  the  value  of  land  for  the 
purpose  of  taxation  exceeds  its  true  value,  this  court  on  writ  of  er I'or 
to  a  State  court  cannot  inquire.  Kelly  v.  Pittsburgh,  104  U.  S.  78,  80. 
The  legislature,  in  the  exercise  of  its  power  of  taxation,  has  the  right 
to  direct  the  whole  or  a  jjart  of  the  expense  of  a  public  im|)rovcmcnt, 
such  as  the  laying  out,  grading;  or  repairing  of  a  street,  to  be  assessed 
upon  the  owners  of  lands  benefited  thereby  ;  and  the  determination  of 
tjie  territorial  district  which  should  be  taxed  for  a  local  improvement  is 
within  the  province  of  legislative  discretion.  Willard  \.  Presbury, 
14  AVall.  G76  ;  Davidson  v.  Neio  Orleans,  96  U.  S.  97  ;  Mobile  County 
V.  Kimball,  102  U.  S.  691,  703,  704  ;  Hagar  v.  Reclamation  District^ 
111  U.  S.  701.  If  the  legislature  provides  for  notice  to  and  hearing  of 
each  proprietor,  at  some  stage  of  the  proceedings,  upon  the  question 
what  proportion  of  the  tax  shall  be  assessed  u[)on  his  land,  there  is  no 
taking  of  his  property  without  due  process  of  law.  McMiHen  v.  Ander- 
son^ 95  U.  S-  37  ;  Davidson  v.  New  Orleans.,  and  Hagar  v.  Beclama- 
tion  District,  above  cited. 

In  Davidson  v.  JSfew  Orleans,  it  was  held  that  if  the  work  was  one 
which  the  State  had  the  authority  to  do,  and  to  pay  for  by  assessments 
on  the  property  benefited,  objections  that  the  sum  raised  was  exorbitant, 
and  that  part  of  the  property  assessed  was  not  benefited,  presented  no 
question  under  the  Fourteenth  Amendment  to  the  Constitution,  upon 
which  this  court  could  review  the  decision  of  the  State  court.  96  U.  S. 
100,  106. 
^  In  the  absence  of  any  more  specific  constitutional  restriction  than 

J^^^  the_genei-aT  prohibition  against  talang  propertywitliout  due  i)roccss  of 
law.  thtQegisTaturo  of  the  State,  having  the  po\vcr  to  fix  thc^snin  neces- 
sarv  to  be  levied  for  the  expense  of  a  i)u1ilic  im|>rovemeiit,  and  to  order 
it  to  be  assessed,  either,  like  other  taxes,  upon  property  generally,  or 
only  upon  the  lands  benefited  by  the  improvement,  is  authorized  to 
cletei-.niine_both  the  amount  of  the  whole  tax,  and  the  class  of  lamls 
wlTich  willj;cccive  the  benefit  and  should  thorpforc  liear  the  iMinleii. 
although  it  may,  if  it  sees  fit,  coinmit  tlic  asce-rtaininLiit  of  either  or 
Ijothof  these  facts  to  the  judgment  of  commissioners. 

When  the  determination  of  the  lands  to  be  benefited  is  intrusted  to 
commissioners,  the  owners  may  be  entltledto  notice  and  hearin<^ji]X)n 
the  question  wlictTier  their  lands  are  honcfited  and  how  miicK!  Bulilie 
legislature  has  the  yjower  to  deterjiuiKs2)^v  the  statute^iinposing  thcjax^ 


'^ 


CHAP.  IV.]  SPENCER   V.   MERCHANT.  Go3 

what  lands,  ^Ybiell  might  be  benefited  by  the  improvement,  arc  in  fact 
benefited  ;  and  if  it  does  so,  its  determination  is  conclusive  upon  the 
owners  and  the  courts,  and  the  owners  have  no  right  to  be  heard  upon 
tlie  question  whether  their  lands  are  benefited  or  not,  but  only  upon  the 
valUlity  of  the  assessment,  and  its  apportioiiineiit  anioiiir  tlie  ditFerent 
parcels  of  the  chiss  which  the  leuisluture  lias  euiichisivcU"  determined 
to  be  benefited. 

In  determining;  what  lands  are  benefited  by  the  improvement,  the 
leg] slature  may  avail  itself  of  such  information  as  it  deems  sufficient, 
either  through  investigations  by  its  committees,  or  by  ado|)ting  as  its 
own  the  estimates  or  conclusions  of  others,  whether  tliose  estimates  or 
conclusions  previously  had  or  had  not  any  legal  sanction . 

In  §  4  of  the  statute  of  1869,  the  assessment  under  which  was  held 
void  in  Stuart  v.  Palmer,  74  N.  Y.  183,  for  want  of  any  provision 
whatever  for  notice  or  hearing,  the  authorit}'  to  determine  what  lands, 
lying  within  three  hundred  feet,  on  either  side  of  the  street,  were  actually 
benefited,  was  delegated  to  commissioners. 

But  in  the  statute  of  1881  the  legislature  itself  determined  what  lands 
were  benefited  and  should  be  assessed.  By  this  statute  the  legislature, 
in  substance  and  effect,  assumed  that  all  the  lands  within  the  district 
defined  in  the  statute  of  1869  were  benefited  in  a  sura  equal  to  the 
amount  of  the  original  assessment,  the  expense  of  levj-ing  it,  and 
interest  thereon  ;  and  determined  that  the  lots  upon  which  no  part  of 
that  assessment  had  been  paid,  and  which  had  therefore  as  yet  borne 
no  share  of  the  burden,  were  benefited  to  the  extent  of  a  certain  portion 


iO,-\of  this  sum.  That  these  lots  as  a  whole  had  been  benefited  to  this 
jT  extent  was  conclusively  settled  by  the  legislature.  The  statute  of  1881 
L  afforded  to  the  owners  notice  and  hearing  upon  the  question  of  the 
equitable  api^ortionment  among  them  of  the  sum  directed  to  be  levied 
upon  alTof  them,  and  thus  enabled  them  to  contest  the  constitutionality 
of  the  statute  ;  and  that  was  alTthe  notice  and  hearing  to  which  tliey 
were  entitled. 

It  is  objected  to  the  validity  of  the  new  assessment,  that  it  included 
interest  upon  the  unpaid  part  of  the  old  assessment,  and  a  proportionate 
part  of  the  expense  of  levying  that  assessment.  But,  as  to  these  items, 
the  case  does  not  substantially  differ  from  what  it  would  have  been 
if  a  sura  equal  to  the  whole  of  the  original  assessment,  including  the 
j^xpense  of  levying  it,  and  adding  the  interest,  had  been  ordered  by 
"^  the  statute  of  1881  to  be  levied  upon  all  the  lands  within  the  district, 
allowing  to  each  owner,  who  had  already'  paid  his  share  of  the  original 
assessment,  a  credit  for  the  sum  so  paid  by  him,  with  interest  from 
the  time  of  pa^'ment.  Judgment  affirmed. 

[The  dissenting  opinion  of  Matthews,  J.  (for  himself  and   Har 
LAN,  J.),  is  omitted.] 


v.v 


654  LENT   V.   TILLSON.  [CHAP.  IV. 


U^ddtx^ , 


^U^^S,  »f  ^..^v^v^  i:^^/'"LENT  V.   TILLSON. 

A..  "Ji       (p/V-o  Supreme  Court  of  the  United  States.     1890. 

.^    V/^  't^      rw---:tXJt  [l-iO   U.  S.  316.] 

tt^x  i^Ku^ot.  The  case,  as  stated  by  the  court,  was  as  follows  :  — 
yy^^  This  suit,  which  was  comnieuced  April  5,  1879,  arises  out  of  an  Act 

^>  of  the  Legislature  of  California,  approved   March   23,   1876,  entitled 

'^'^         "  An  Act  to  authorize  the  widening  of  Dupont  Street  in  the  Cit}-  of 
*^  "^ ^'^  San  Francisco."     An  assessment  was  made  to  meet  the  cost  incurred 
ajl  £a*«-«tv  in  its  execution.     Provision  w'as  made  in  the  Act  to  issue   and  sell 
bonds  to  meet  such  cost  in  the  first  instance,  and  for  the  levy  of  an 
annual  tax  on  the  lands  benefited,  in  ])roportion  to  benefits,  to  pay  the 
■  ■   ^''T^        interest  on  the  bonds,  and  to  create  a  sinking  fund  for  the  payment  of 
-  Xr^**^     the  principal  debt.     Bonds,  dated  January'  1,  1876,  to  the  amount  of 
^wvM/X       one  million  dollars,  were  issued  in  the  name  of  the  city  and  county 
fj   ^^        of  San  Francisco,   aiicl  made  payable  to  the  holder  in  gold  coin  of 
J  '~ti\i'Mr-  the  United  States,  twenty  years  after  date,  with  interest,  payable  half 
yearh',  at  the  rate  of  seven  per  cent  per  annum.     The  bonds  recited 
f^    "^       that  the}-  were  issued  under  the  above  Act,  were  to  be  paid  out  of  the 
A^^*^^'^^^    fund  raised  b}-  taxation  as  therein  provided,  and  were  taken  by  the  holder 
^  Vrvr"    subject  to  the  conditions  expressed  in  its  22d  section  to  be  hereafter  re- 
(\     ,  ferred  to.     The}'  were  signed  by  the  mayor,  auditor,  and  county  sur- 

-^^-V''^'^'-^"  veyor,  and  attested  by  the  official  seal  of  the  city  and  county.     The 
^  ^-  plaintiffs  in  error,  who  were  the  plaintiffs  below,  being  owners  of  lots  or 

parcels  of  land  within  the  district  subject  to  the  assessment,  and  claim  - 
ing  that  the  statute  was  unconstitutional  and  void,  brought  this  suit  to 
obtain  a  decree  perpetually  enjoining  the  defendant  in  error,  tax  collec- 
tor of  the  city  and  county  of  San  Francisco,  from  s elling  thei r  property 
under  the  assessment.  Holders  of  the  bonds  to  a  large  amount  inter- 
vened and  were  made  defendants.  The  court  of  original  jurisdiction  — 
^^*^  .  the  Superior  Court  of  the  city  and  county  of  San  Francisco  —  rendered 
L  A^>^-^^  a  decree  giving  the  relief  asked.  Upon  appeal  to  the  Supreme  Court  of 
\  I  f-  California  that  decree  was  reversed  and  the  cause  remanded  with  direc- 
f'j^'^^  tions  to  dissolve  the  injunction  and  dismiss  the  complaint. 
ji^  iJUx.  rpj^g  statute  in  question  contains  many  provisions.  .  .  .  [Here  follows 

,,a.4^vvfc*^  a  long  statement  of  these  provisions.] 

,  '      J/?-.  JosepA  ^.  CAoa^e,  for  plaintiffs  in  error.    3fr.  John  Gar  be?' and 

^^^^T^^  Mr.  T.  B.  Bishop  also  filed  a  brief  for  same. 

■yL-  tt^  Mr.  A.  H.  Garland  (with  whom  were  Mr.  John  MuUan  and  Mr. 

l  AjCvC'I  -  it.  J.  May  on  the  brief),  for  defendant  in  error. 

^j^  Mr.  Justice  Harlan,  after  making  the  above  statement,  delivered 

itjL   ^^^  opinion  of  the  court. 

^^    M  The  Chief  Justice  of  the  Supreme  Court  of  California,  under  its  order, 

^  ct .        made  his  certificate  to  the  effect  that  in  this  suit  and  appeal  there  was 

J    ^  _     drawn  in  question  the  validity  of  the  above  Act  of  March  23,  1876,  and 


C^- 


,un^\^^L^^   .v.M.~tLL  ^'^^^-^ou^-^^mU,    ^  ^dM^    f^< 


XL:^0:Ulu/h  ^  Cc/x.  ny<ui  A^J^Ui^    ^    ^  OiA/L^  Au/^    Ccu^^  tv  tlu  %u4^- 

i  -^/jj/'    CHAP.  IV.]  LENT   V.    TILLSON.  655     ^  u 

the   authority  exercised   and   the  proceedings  taken  under  it,  on   the 
/k^'f     ground  that  the  statute  and  said  authority'  and  proceedings  were  repug-    C  ^^^Jj/i  t 
/^  ,         nant  to  the  Fourteenth  Amendment  to  the  Constitution  of  the  United  .j.    ^ 

States,  and  that  the  decision  of  that  court  was  in  favor  of  their  validity.  /  V  —  ^^ 
The  provisions  of  tlie  statute,  to  which  we  liave  referred,  sufficient!}^  — ><.iZ*^, 
indicate  its  scope  and  effect,  and  enable  us  (without  referring  to  others  -^  ..  JLnj^  , 
that  relate  to  matters  of  mere  detail)  to  determine  whether  or  not  the  ^  , 
Act,  upon  its  face  or  b}-  its  necessary  operation,  is  repugnant  to  that  rZAA-^M^ 
clause  of  the  Constitution  declaring  that  no  State  shall  deprive  any  yj  JlyO'MJ' 
person  of  property  without  due  process  of  law.  11, 

We  have  seen  that  the  statute  defined  the  district  benefited  by  the     OJm^J^^ 
widening  of  Dupont  Street,  and  upon  which  the  assessment  to  meet   _|/       ItM. 
the  cost  of  the  work  was  to  be  imi)osed  ;  made  it  a  condition  precedent     ''^   ^ 
to  the  proposed  improvement  that  it  should  be  declared  by  resolution  or     /(,  (X  ^iju^jji 
,  -,   V  V  order  of  the  Board  of  Supervisors  of  the  city  and  county  to  be  expedient  \      6^  ^ 

directed  that,  after  the  passage  of  such  a  resolution  or  order,  the  Du-  ""tlAAAA  Vv 
^A^  pont  Street  Commissioners  should  publish,  for  not  less  than  ten  days,  A  rdthjii 
aJ-u  in  two  daily  papers  in  San  Francisco,  a  notice  informing  property 
,yL£/l'\  owners  along  the  line  of  the  street  of  its  organization,  and  inviting  all  C-'^VVVT-^ 
^  *  persons  interested  in  propertv  sought  to  be  taken,  or  that  would  be  in-  ^^u^^ji  X^ 
■<^^^'      iured  by  the  widening  of  that  street,  to  present  descriptions  of  their  ^ 

<  J  respective  lots,  and  a  statement  in  writing  of  their  interest  in  them;     As-^^\ 

■fy^  //allowed  the  majoritv  in  value  of  owners  of  property  within  the  district 
iZeM^i^  "embracing  the  lands  of  the  plaintiffs,  at  any  time  w-ithin  thirty  days 
I  to  after  the  last  publication  of  the  above  notice,  by  written  protest  filed 
'H/2{mA~  ""1th  the  Board  of  Commissioners,  to  defeat  altogether  the  proi)osed 
^  widening  of  Dupont  Street;  required  the  board  to  prepare  a  written 
■''^■^^'■^^  report  showing  the  description  and  actual  cash  value  of  the  several  lots 
L,A  cfl  and  subdivisions  of  land  and  buildings  included  in  the  land  proi)osed  to 
^  ^  be  taken  for  the  widening  of  the  street,  the  value  and  damage  deter-  • 

'*^^  mined  upon  for  the  same  respectively  and  the  amount  in  which,  accord- 
tOlry'J^^nng  to  its  judgment,  each  lot  had  been  or  would  be  benefited  by  reason 
of  the  widening  of  the  street,  relatively  to  the  benefits  accruing  to  other 
lots  of  land  within  the  designated  district ;  and  directed  such  report,  as 
soon  as  completed,  to  be  left  at  the  office  of  the  board  daily,  during  ordi- 
nary business  hours,  for  the  free  inspection  of  all  persons  interested,  and 
notice  of  the  same  being  open  for  inspection  at  such  time  and  place  ])ub- 
lished  by  the  board  daily,  for  twenty  days,  in  two  daily  newspapers 
printed  and  published  in  the  city  and  county. 

But  this  was  not  all.      For  any  person  interested,  and  who  felt  him- 

)  A^^-HA   self  aggrieved  by  the  action  or  determination  of  the  board,  as  indicated 

t/«<«/C      by  its  report,  was  permitted,  at  any  time  within  the  above  thirty  days. 

i;C\tAji<r  to  apply  by  i)etition  to  the  county  court  of  the  city  and  county,  showing 

'Xfcc    ^J^  interest  in  the  proceedings  of  the  Board  of  Commissioners,  and  his 

;       .   objections  thereto,  for  an  order  that  would  bring  before  that  court  the 

/  report  of  the  board,  together  with  such  pertinent  documents  or  data  as 

AA-A/^^^^^Vfere  in  its  custody,  and  were  used  in  i^reparing  its  report.    It  was  made 


656  LENT   V.   TILLSON.  [cilAP.  IV. 

the  duty  of  the  party  filing  the  petition  to  serve,  on  the  same  day,  a 
cop3'  thereof  on  at  least  one  of  the  members  of  the  Board  of  Commis- 
sioners, who  were  at  libert}-  to  ai)pear  by  counsel,  or  otherwise,  and 
make  answer  to  it.  The  court  was  also  eiiir)Owered  to  hoar  the  i)etition, 
and  sot  it  down  for  hearinir  within  ten  da\s  IVom  its  beiiiir  (iU'd.  Pro- 
vision was  made  for  the  taking  of  testimony  upon  the  hearing,  and  the 
court  was  authorized  to  use  its  process  to  compel  the  attendance  of 
witnesses  and  the  production  of  books,  papers,  or  maps  in  the  custodj' 
of  the  board,  or  otherwise.  The  discretion  uiven  to  the  court,  after 
hearing  and  considering  the  a))i)lication,  to  allow  or  to  deny  the  order 
prayed  for  was,  of  course,  to  be  exercised  iudicially,  according  to  the 
showing  made  by  the  petitioners.  And  that  complete  justice  might  be 
done,  the  court  was  invested  with  power,  not  simply  to  approve  and 
confirm  the  report  of  the  board,  but  to  refer  it  back  with  directions 
to  alter  or  modify  the  same  in  the  particulars  specified  by  the  court. 
Until  such  alterations  and  modifications  were  made,  the  court  was 
under  no  duty  to  approve  or  confirm  the  report ;  and  until  it  was  ap- 
proved and  confirmed,  the  board  was  without  authority  to  proceed  at  all 
in  the  work  committed  to  it  b}'  the  statute. 

Were  not  these  provisions  in  substantial  conformit}'  with  the  require- 
ments of  "  due  process  of  law  "  as  recognized  in  the  decisions  of  this 
court?  In  Davidson  v.  New  Orleans,  96  U.  S.  97,  104,  it  was  said 
that  "  whenever,  b}-  the  laws  of  a  State,  or  b}'  State  authorit}',  a  tax, 
assessment,  servitude,  or  other  burden  is  imposed  upon  property  for  the 
public  use,  whether  it  be  for  the  whole  State  or  of  some  more  limited 
portion  of  the  community,  and  those  laws  provide  for  a  mode  of  con- 
firming or  contesting  the  charge  thus  imposed,  in  the  ordinary  courts  of 
justice,  with  such  notice  to  the  person  or  such  proceeding  in  regard  to 
the  property  as  is  appropriate  to  the  nature  of  the  case,  the  judgment 
in  such  proceedings  cannot  be  said  to  deprive  the  owner  of  his  propert}- 
without  due  process  of  law,  however  obnoxious  it  may  be  to  other  ob- 
jections." So  in  Hagar  v.  Reclamation  District ^  111  U.  S.  701,  708: 
"  Undoubtedl}',  where  life  and  libei'ty  are  involved,  due  process  requires 
that  there  be  a  regular  course  of  judicial  proceedings,  which  imply  that 
the  part}'  to  be  affected  shall  have  notice  and  an  opportunit}'  to  be 
heard  ;  so,  also,  where  title  or  possession  of  property  is  involved.  But, 
where  the  taking  of  propert}'  is  in  the  enforcement  of  a  tax,  the  pro- 
ceeding is  necessaril}'  less  formal,  and  whether  notice  to  him  is  at  all 
necessary  may  depend  upon  the  character  of  the  tax  and  the  manner 
in  which  its  amount  is  determinable.  ...  As  stated  by  Mr.  Justice 
Bradley  in  his  concurring  opinion  in  Davidson  v.  Neio  Orleans,  '  in 
judging  what  is  due  process  of  law,  respect  must  be  had  to  the 
cause  and  object  of  the  taking,  whether  the  taxing  power,  the  power  of 
eminent  domain  or  the  power  of  assessment  for  local  improvements,  or 
some  of  these  ;  and,  if  found  to  be  suitable  or  admissible  in  the  special 
case,  it  will  be  adjudged  to  be  "  due  process  of  law  ; "  but  if  found  to  be 
arbitrary,  oppressive,  and  unjust,  it  maj'  be  declared  to  be  not  due 


CHAP.  IV.]  LENT   V.   TILLSON.  657 

process  of  law.'  "  Of  the  different  kinds  of  taxes  wliich  a  State  maj^ 
impose,  and  of  which  from  their  nature  no  notice  can  be  given,  the 
court,  in  that  case,  enumerates  poll  taxes,  licenses  (not  dependent 
upon  the  extent  of  business)  and  specific  taxes  on  things,  persons, 
or  occupations,     p.  709. 

These  principles  were  reaffirmed  in  Kentucky  Railroad  Tax  Cases. 
115  U.  S.  321,  331,  and  in  Silencer  v.  Merchant.,  125  U.  S.  345,  355, 
in  the  latter  of  which  cases  it  was  said  that  "  the  legislature,  in  the 
exercise  of  its  power  of  taxation,  has  the  right  to  direct  the  whole  or 
part  of  the  expense  of  a  public  improvement,  such  as  the  lading,  grad- 
ing, or  repairing  [and,  equally,  the  widening]  of  a  street,  to  be  assessed 
upon  the  owners  of  lands  benefited  therebj- ;_"  and  that,  "  the  determi- 
nation of  the  territorial  district  which  should  be  taxed  for  a  local  im- 
provement is  within  the  province  of  legislative  discretion  ;  "  also,  that, 
"  if  the  legislature  provides  for  notice  to  and  hearing  of  eacli  proprietor, 
at  some  stage  of  the  proceedings,  upon  the  question  what  proportion  of 
the  tax  shall  be  assessed  upon  his  land,  there  is  no  taking  of  his  prop- 
erty without  due  process  of  law." 

Tested  by  these  princii^les,  the  statute  providing  for  the  widening  of 
Dupont  Street  cannot  be  held  to  be  repugnant  to  the  constitutional  re- 
quirement  of  due  process  of  law.  The  notice  by  publication  to  all  who 
owned  propert}'  liable  to  be  assessed  for  the  cost  of  that  improvement 
was  appropriate  to  tlie  nature  of  the  case,  and  was  reasonable  in  respect 
to  the  length  of  time  prescribed  for  the  publication.  And  ample  oppor- 
tunity was  given  to  all  persons  interested  to  test  in  a  court  of  com petent 
j u risdiction  the  fairness  and  legality  of  any  assessment  proposed  to  be 
made  upon  their  property  for  the  purposes  indicated  by  the  statute. 
That  court  had  power  to  require  such  alterations  or  modifications  of  the 
report  of  the  Board  of  Commissioners  as  justice  demanded.  It  was  not 
bound  to  approve  an_y  report  that  did  not  conform  to  its  judgment  as  to 
what  was  right ;  and  without  such  confirmation  the  board  could  not 
proceed  in  the  execution  of  the  work  contemplated  b}'  the  legislature. 

If  we  had  an  v  doubt  of  the  correctness  of  these  views,  we  sliould  ac- 
cept the  interpretation  which  the  highest  court  of  the  State  places  upon 
the  statute.  When  the  inquiry  is  whether  a  State  enactment  under 
which  property  is  proposed  to  be  taken  for  a  public  purpose  accords 
full  opportunity  to  the  owner,  at  some  stage  of  the  proceedings  involv- 
ing his  property,  to  be  heard  as  to  their  regularity  or  validity-,  we  must 
assume  that  the  inferior  courts  and  tribunals  of  the  State  will  give  effect 
to  such  enactment  as  interpreted  by  the  highest  court  of  that  State. 
The  Supreme  Court  of  California,  speaking  by  Mr.  Justice  Temple,  in 
this  case,  has  said  :  "  We  are  not  considering  here  a  statute  which  is 
silent  as  to  the  hearing.  The  pi'ovisions  in  question  were  undoubtedh' 
inserted  in  view  of  the  constitutional  requirement,  and  for  the  purpose 
of  affording  that  opportunity  to  be  heard,  witliout  whicli  tlie  law  would 
be  void.  To  give  the  statute  the  construction  contended  for  would  not 
only  defeat  the  evident  purpose,  but  would  make  the  whole  proceeding 
VOL.  I.  —  42 


658  LENT   V.    TILLSON.  [CHAP.  IV. 

farcical.  And  I  must  confess,  it  seems  to  mc,  it  requires  great  industr}' 
in  going  wrong,  in  view  of  all  the  circumstances,  to  conclude  that  such 
can  be  the  meaning.  Inapt  words  certainly  are  found  in  the  section 
[§  8],  but  it  would  not  have  provided  so  elaborately  for  a  thorough  in- 
vestigation for  grievances  if  it  were  not,intended  that  redress  should  be 
awarded.  The  statute  has  apparentlj'  been  patched  and  tinkered  after 
it  was  first  drawn,  and  incongruous  matter  injected  into  the  body  of 
it.  But  it  still  provides  for  a  full  hearing,  and  that  the  court  maj- 
alter  and  modify.  And  it  seems  tliat  such  action  is  to  be  based  upon 
the  hearing  provided  for.  The  word  '  discretion '  is  used  in  various 
meanings,  but  liere,  evidently,  it  was  intended  to  submit  the  whole 
matter  to  the  sound  judgment  of  the  court  to  be  exercised  according  to 
the  rules  of  law."     72  California,  404,  421. 

It  is  said  that  the  county  court  was  without  power  to  adjudge  the 
statute  to  be  unconstitutional,  and  had  no  discretion,  except  to  confirm 
the  report,  or  to  require  it  to  be  altered  or  modified.  We  do  not  per- 
ceive that  this  is  a  material  inqu_ii'\:j_so  long  as  the  statute  is  not  repug- 
nant to  the  Constitution.  But  we  do  not  admit  that  the  county  court 
was  without  power  to  hold  it  to  he  unconstitutional  and  void  —  if  such 
was  its  view  —  and  to  decline,  upon  that  ground  alone,  to  confirm  any 
report  that  the  Board  of  Commissioners  might  have  filed.  The  judge 
or  judges  of  that  court  were  obliged,  by  their  oath  of  office,  and  in 
fidelit}'  to  the  supreme  law  of  the  land,  to  refuse  to  give  effect  to  an}' 
statute  that  was  repugnant  to  that  law,  anything  in  the  statute  or  tlie 
Constitution  of  the  State  to  the  contrary  notwithstanding.  Upon  this 
subject,  as  well  as  in  respect  to  the  power  of  the  county  court  to  consider 
objections  of  every  nature  that  might  be  made  to  the  confirmation  of  an}' 
report  from  the  Board  of  County  Commissioners,  the  Supreme  Court  of 
the  State  said  :  "  The  statute  does  not  expressly  authorize  the  court  to 
pass  upon  the  validitv  of  the  Act,  or  whether  the  Board  of  Supervisors 
had  passed  the  necessarj'  resolution,  or  the  notices  had  been  given. 
But  the  power  to  do  this  is  necessarily  involved  in  the  power  of  the 
court  to  act  at  all.  It  may  be  that  the  court  could  not  pass  upon  these 
questions  upon  which  its  jurisdiction  depended,  so  as  to  conclude  all 
inquiry  even  on  a  collateral  attack.  It  was  a  constitutional  court,  in- 
vested with  jurisdiction  \)y  the  constitution  of  special  cases.  The  par- 
ties had  full  notice  of  the  proceeding,  and  of  their  right  to  be  heard." 
Again:  "  The  statute  places  no  limit  upon  tlie  objections  which  might 
be  made  by  those  deeming  themselves  aggrieved  b}'  the  action  or  deter- 
mination of  the  board  as  shown  in  the  report.  As  all  their  determina- 
tions which  could  aff'ect  any  person  were  required  to  appear  in  the 
report,  this  would  seem  to  include  all  possil)le  oV)jections.  The 
determination,  for  instance,  might  have  been  objected  to,  because, 
the  Act  being  invalid  or  the  notices  not  having  been  given,  the 
board  had  no  right  to  proceed  to  act  at  all.  If  this  contention 
were  sustained,  the  result  would  have  been  that  the  court  would 
not    have    confirmed   the    report,    and    the    proceedings   would    ha\e 


CHAP.  IV.]  LENT   V.    TILLSON.  659 

ended  without  fixing  a  charge  upon  the  property  of  plaintiffs.  Tliey 
could  have  complained  that  a  wrong  basis  was  adopted  in  estimating 
damages  or  benefits  ;  that  the  estimated  cost  was  too  much,  or  for  any 
misconduct  of  the  commissioners  which  could  affect  them,  or  tliat  the 
cost  exceeded  the  estimated  benefits,  and  it  does  not  seem  to  me  that 
the  court  would  have  found  any  difficulty  in  gsanting  relief."  72  Cali- 
fornia, 404,  422. 

It  is  contended,  however,  that  the  Act  was  so  adTninisterpd  .is  to  rp.- 
sjjlt  in  depriving  the  plaintiffs  of  their  i^ropertv  w'ithout  due  process  of 
law.  This  contention  is  material  onl}'  so  far  as  it  involves  the  inquir}' 
as  to  whether  the  tribunals  charged  by  the  statute  with  the  execution  of 
its  provisions  acquired  jurisdiction  to  proceed  in  respect  to  the  lots  or 
lands  in  question  and  the  owners  thereof.  Jurisdiction  was,  of  course, 
essential  before  the  plaintiff's  propert}'  could  have  been  burdened  with 
this  assessment.  But  errors  in  the  mere  administration  of  the  statute, 
not  involving  j u risdiction  of  the  subject  and  of  the  parties,  could  not 
justify  this  court,  in  its  re-examination  of  the  judgment  of  the  State 
court,  ui3on  writ  of  error,  to  hold  that  the  State  had  deprived,  or  was 
about  to  deprive,  the  plaintiffs  of  their  propertv  without  due  process  of 
law.  Whether  it  was  expedient  to  widen  Dupont  Street,  or  whether 
the  Board  of  Supervisors  should  have  so  declared,  or  whether  the  Board 
of  Commissioners  properly  apportioned  the  costs  of  the  work  or  cor- 
rectly' estimated  the  benefits  accruing  to  the  different  owners  of  prop- 
ert}'  affected  by  the  widening  of  the  street,  or  whether  the  board's 
incidental  expenses  in  executing  the  statute  w'ere  too  great,  or  whether 
a  larger  amount  of  bonds  were  issued  than  should  have  been,  the  ex- 
cess, if  an}',  not  being  so  great  as  to  indicate  upon  the  face  of  the 
transaction  a  palpable  and  gross  departure  from  the  requirements  of 
the  statute,  or  whether  upon  the  facts  disclosed  the  report  of  the  com- 
missioners should  have  been  confirmed,  are,  none  of  them,  issues  pre- 
senting Federal  questions,  and  the  judgment  of  the  State  court,  upon 
them,  cannot  be  reviewed  here. 

Upon  the  issue  as  to  whether  the  Board  of  Commissioners  and  the 
county  court  acquired  jurisdiction  to  proceed  in  the  execution  of  the 
statute,  the  evidence  is  full  and  satisfactor}'.  .   .   . 

It  is  contended  that  the  notices  required  by  the  different  sections  of 
the  Act  to  be  published  for  a  designated  number  of  days  were  not  so 
published.  This  contention  rests,  principall}',  upon  the  ground  that  the 
notices,  on  some  of  the  daj's,  appeared  in  a  "  Supplement  "  of  some  of 
the  newspapers,  and  not  in  the  body  of  the  paper  where  reading  matter 
was  usually  found.  There  is  no  force  in  this  objection,  and  it  does  not 
deserve  serious  consideration. 

Other  objections  have  been  urged  by  the  plaintiffs  which  we  do  not 
deem  it  necessary  to  consider.  For  instance,  it  is  said  that  the  maj'or 
of  the  cit}'  of  San  Francisco,  one  of  the  Board  of  Commissioners,  was 
himself  the  owner  of  a  lot  on  Dupont  Street,  and,  for  that  reason,  was 
incompetent  to  act  as  one  of  the  Board  of  Street  Commissioners  ;  that 


660  CHICAGO,    ETC.    KAILWAY    CO.   V.    MINNESOTA.        [CHAP.  lY. 

some  of  the  alterations  and  niudillcations  of  the  report  of  the  commis- 
sioners made  upon  the  hearing  in  tlie  count}-  court,  of  the  petitions  filed 
b}'  ditferent  parties  were  so  made  under  private  arrangements  between  ■ 
the  connnissioners  and  those  parties,  of  which  other  property  owners 
along  Dupont  Street  liad  no  notice,  and  by  wliich  such  owners  were  in- 
jurioush'  affected  ;  that  the  Board  of  Commissioners  selected  experts  to 
"  assist  "  it  in  estimating  the  damages  for  property  taken  and  injured 
b}-  the  proposed  improvement  and  the  benefits  accruing  therefrom,  and 
that  the  report  of  those  experts  was  accepted  by  the  commissioners, 
without  themselves  making  or  attempting  to  make  an  appraisement  of 
damages  or  an  assessment  of  benefits  under  the  statute  ;  and  that  such 
appraisement  and  assessment  were  not  in  fact  correct,  fair,  or  just,  but 
were  fraudulent.  In  respect  to  all  these  and  like  objections,  it  is  suffi- 
cient to  say  that  the}*  do  not  necessarily  iuA-olve  any  question  of  a  Fed- 
eral nature,  and,  so  far  as  this  court  is  concerned,  are  concluded  b}' 
the  decision  of  the  Supreme  Court  of  California. 

We  are  of  opinion,  upon  the  whole  case,  that  the  Supreme  Court  of 
California  correctl}-  held  that  the  plaintiffs  had  not  been,  or  were  not 
about  to  be,  deprived  of  their  property,  in  violation  of  the  Constitution 
of  the  United  States.  Decree  affirmed. 

Mr.  Justice  Field.     I  dissent. 


e^>(.C£^'     CHICAGO,  etc.  RAILWAY  COMPANY  v.  MINNESOTA. 

-^      L_.      •     /  Supreme  Court  of  the  United  States.     1889. 

Wax   l7Ia-^-c/»'/W'  r» 

^    >/M.J^^  [134C/.5.418.]! 

This  was  a  writ  of  error  to  review  a  judgment  of  the  Supreme  Court 
/'j^oyt^  of  the  State  of  Minnesota,  awarding  a  writ  of  mandamus  against  the 
aJjtLJLycL^  Chicago,  Milwaukee  &  St.  Paul  Railway  Company. 

^        The  case  arose  on  proceedings  taken  by  the  Railroad  and  Warehouse 
'»^>-^^"-'*^      Commission  of  the  State  of  Minnesota,  under  an  Act  of  the  Legislature 
AjAA  |^'<of  that  State,  approved  March  7,  1887,  General  Laws  of  1887,  c.  10, 
V      MM        entitled  "  An  Act  to  regulate  Common  Carriers,  and  creating  the  Rail- 
*  ,     road  and  AVarehouse  Commission  of  the  State  of  Minnesota,  and  defin- 

^-^^"^^^"^^-^^^ing  the  Duties  of  such  Commission  in  Relation  to  Common  Carriers." 
jyyX'^^^  '^'^®  ^^*  '^^  ^^^  forth  in  full  in  the  margin  [of  134  U.  S.  Reports  at 
pp.  418-434]. 

The  ninth  section  of  that  Act  creates  a  commission  to  be  known  as 

V^^^^     the  "  Railroad  and  Warehouse  Commission  of  the  State  of  jMinnesota," 

L         ^  to  consist  of  three  persons  to  be  appointed  by  the  Governor  by  and 

^^■^-f^^^"'^^  -vvith  the  advice  and  consent  of  the  Senate. 

^.^yyvt/UyUAi  -The  first  section  of  the  Act  declares  that  its  provisions  shall  apply 

vv       ^X-^oC-^^^   ^■^^Clxe*- 1  The  statement  of  facts  is  shortened. —  Ed.     ,        .  t-/    ^ 


taAAJ(^ 


CHAP.  IV.]        CHICAGO,   ETC.    RAILWAY   CO.    V.   MINNESOTA.  661   (X^^^JfX^ 

to  an}'  common  carrier  "engaged  in  the  transportation  of  passengers    ^  \S^\/^ 
or  property  wholly  by  railroad,  or  parti}'  by  railroad  and  partly  by     -/yvr-T/u* 
water,  when  both  are  used  under  a  common  control,  management  or     ,       7—-^ 
arrangement,  for  a  carriage  or  shipment  from  one  place  or  station  to    r^'*'^ 
another,  both  being  within  the  State  of  Minnesota."  aJJif^^t*~^ 

The  second  section  declares  "  that  all  charges  made  by  any  common  _^ 

carrier,  subject  to  the  provisions  of  this  Act,  for  any  service  rendered  Ttcc** 
or  to  be  rendered  in  the  transportation  of  passengers  or  property  as   .pijLyUj-  ') 
aforesaid,  or  in  connection  therewith,  or  for  the  receiving,  delivering,     1^^^^.^,^-'^- 
storage  or  handling  of  such  propert}',  shall  be  equal  and  reasonable  ; 
and  every  unequal  and  unreasonable  charge  for  such  service  is  prohibited    ^^-'^^-^-''-^^ 
and  declared  to  be  unlawful."  — aU/^    ov 

The  eighth  section  provides  that  every  common  carrier  subject  to  the  ,jj^.»_^^  u. 
provisions  of  the  Act  shall  print  and  keep  for  public  inspection  sched-  ,    / 

ules  of  the   charges  which  it  has  established  for  the  transportation  of    '*^       / 
property  ;  that  it  shall  make  no  change  therein  except  after  ten  days'  -oJt^-vw.  ^ 
public  notice,  plainly  stating  the  changes  proposed  to  be  made,  and  the     k«,^Vv«/ 
time  when  they  will  go  into  effect ;  that  it  shall  be  unlawful  for  it  to    f  ( 

.charge  or  receive  any  greater  or  less  compensation  than  that  so  estab-'X^^^  OJt^ 
lished  and  published,  for  transporting  propert}' ;  that  it  shall  file  copies     i,yyjj.ajjy 
of  its  schedules  with  the  commission,  and  shall  notify  such  commission    / 
of  all  changes  proposed  to  be  made  ;  that  in  case  the  commission  shall  J^-'-'-*-*^,   t 
find  at  any  time  that  any  part  of  the  tariffs  of  charges  so  filed  and  pub-  ^       ex^dt 
lished  is  in  an}^  respect  unequal  or  unreasonable,  it  shall  have  the 
power,  and  it  is  authorized  and  directed,  to  compel  an}'  common  car-  KkjCM./^  /ca.* 
rier  to  change  the   same  and  adopt   such  charge   as  the  commission     ^^    ^j 
"shall  declare  to  be  equal  and  reasonable,"  to  which  end  the  commis- 
sion shall,  in  writing,  inform  such  carrier  in  what  respect  such  tariff  of^^-'*'^''^'^    ^ 
charges  is  unequal  and  unreasonable,  and  shall  recommend  what  tarifl["    ^r'srxj^ 
shall  be  substituted  therefor ;  that  in  case  the  carrier  shall  neglect  for 
ten  days  after  such  notice  to  adopt  such  tariff  of  charges  as  the  com-    ^    ^^^^"^ 
mission  recommends,  it  shall  be  the  duty  of  the  latter  to  immediately  -^ 
publish  such  tariff  as  it  has  declared  to  be  equal  and  reasonable,  and"~^^^^"^^i  ^ 
cause  it  to  be  posted  at  all  the  regular  stations  on  the  line  of  such  car-      yv^v<_^  a 
rier  in  Minnesota,  and  it  shall  be  unlawful  thereafter  for  the  carrier  to 
charge  a  higher  or  lower  rate  than  that  so  fixed  and  published  by  the   .<UNuJr>^ 
commission  ;  and  that,  iLimy_ciiidex_subject  to  the  provisions  of  the  _/       p 
Act  shall  neglect  to  publish  or  file  its  schedules  of  charges,  or  to  carry  "t^    ^-^' 
out  such  recommendation  made  and  published  by  the  commission,  it  e^A.— -j^ 
slialijbe  subject  to  a  writ  of  mandamus  "  to  be  issued  by  any  judge  of  -  j_  ^ 

the  Supreme  Court  or  of  nny  of  the  district  courts "  of  the  State,  on  ^^   '^"^^^ 
application  of  the  commission,  to  compel  compliance  with  the  require-  ,^CL    oA) 
nients  of  section  8  and  with  the  recommendation  of  the  commission,       <     < 
aacLa  failure  to  comi:>ly  with  the  requirements  of  the  tnandamvs  shall"" 
be  punishable  a_s  and  for  contempt,  and  the  commission  may  apply  also    tJT^i^   q* 
to  any  such  judge  for  an  injunction  against  the  carrier  from  receiving       ^       ^ 
or  transporting  property  or  passengers  within  the  State  until  it  shall  ]      Vj 

i^^   did,        CK^UhM:^    tU     ;^.^nvitA.cu^tL;/vc   rg  t^ 


^    -^        -    // 


•c/       -A-  '.-A-'.   /.  J,,,   La. 


..::iCrt^.      ^^^^^'-^  ^^.^^,^    z^    C^.;^^V;^^t^ 

^^^  GG2  CHICAGO,    ETC.    RAILWAY   CO.    V.    MINNESOTA.         [CHAP.  IV 

U      have  comi)liod  with  the  requirements  of  section  8  and  with  the  recom- 
""^-'^'^'^^-pi^  meudation  of  the  commission,  and  for  any  wilful  violation  or  failure  to 
A^JUjtx.^  complv  with  such  requirements  or  such  recommendation  of  the  commis- 
~fr  siouj  the  court  may  award  such  costs,  including  counsel  fees,  by  wa^-^of 

'^''^^■^■^^^      penalty,,  on  the  return  of  said  writs  and  after  due  deliberation  thereon, 
xxaX^'^     as  may  be  just. 
1      '  On  the  22d  of  June,  1887,  The  Boards-of-Trade  Union  of  Farming- 

^i^-eCAO^Qj,^  Northfield,  Faribault,  and  Owatonna,  in  Minnesota,  filed  with  the 
cuju-  Lrr-  commission  a  petition  in  writing,  complaining  that  the  Chicago,  Mil- 
.      ^    waukee  &  St.  Paul  Railway'  Company,  being  a  common  carrier  engaged 
*^'^^-i'^t^^'^^^^ix  the  transi)ortation  of  propert}-  wholl}'  by  railroad,  for  carriage  or 
shipment  from  Owatonna,  Faribault,  Dundas,  Northfield,  and  Farming- 
ton,  to  the  cities  of  St.  Paul  and  Minneapolis,  all  of  those  places  being 
'^'^^'^'^^'T^^^within  the  State  of  Minnesota,  made  charges  for  its  services  in  the 
transportation  of  milk  from  said  Owatonna,  Faribault,  Dundas,  North- 
field,  and  Farmington  to  St.  Paul  and  Minneapolis,  which  were  unequal 
and  unreasonable,  in  that  it  charged  four  cents  per  gallon  for  the  trans- 
portation of  milk  from  Owatonna  to  St.  Paul  and  Minneapolis,   and 
•three  cents  per  gallon  from  Faribault,  Dundas,  Northfield,  and  Farming- 
ton  to  the  said  cities  ;  and  that  such  charges  were  unreasonably  hio:h, 
and  subjected  the  traffic  in  milk  between  said  points  to  unreasonable 
'<j-^-*'^'*^    prejudice  and  disadvantage.     The  prayer  of  the  petition  was  that  such 
,  aU-lX^    rates  be  declared  unreasonable,  and  the  carrier  be  compelled  to  change 
■f    <7L  fcluL  ^^^  same  and  adopt  such  rates  and  charges  as  the  commission  should 
v  declare  to  be  equal  and  reasonable. 

A  statement  of  the  complaint  thus  made  was  forwarded  b}'  the 
commission,  on  the  29th  of  June,  1887,  to  the  railway  compan}-,  and 
it  was  called  upon  by  the  commission,  on  the  6th  of  Jul}',  1887,  to 
satisfy'  the  complaint  or  answer  it  in  writing  at  the  oflSce  of  the  com- 
mission in  St.  Paul,  on  the  13th  of  Jul}',  1887.  .  .  .  [On  a  hearing 
and  investigation  bv  the  commissioners,  the  rate  of  two  and  a  half 
cents  a  scallon,  in  ten-gallon  cans,  was  declared  bv  them  to  be  an 
equal  and  reasonable  rate  for  carrying  milk  from  Owatonna  and  Fari- 
bault  to  St.  Paul  and  Minneapolis,  and  the  existing  rate  of  three 
cents  a  gallon  was  pronounced  unequal  and  unreasonable,  and  the 
plaintiflT  in  error  was  directed  to  change  its  rates  accordinglv.  The 
company  neglected  to  obey,  and  the  commission  duly  posted  the  new 
rates  along  the  company's  road,  and  applied  to  the  Supreme  Court  of 
the  State  for  a  writ  of  mandamus  to  compel  the  companv's  obedience. 
An  alternative  writ  was  issued.  The  companv  answered  denying  the 
power  of  the  legislature  to  delegate  to  a  commission  the  authority  to 
fix  rates  for  transportation,  as  was  attempted  in  the  Act  in  question  ; 
alleging  that  the  State,  in  this  Act,  was  undertaking  to  deprive  it  of 
its  property  without  due  process  of  law  ;  and  that  the  old  rate  was 
reasonable  and  the  new  unreasonable,  and  the  establishing  of  it  a  taking 
of  property  without  due  process  of  law.  At  the  hearing,  the  company 
was  refused  leave  to  take  testimony  as  to  the  reasonableness  of  the  new 


CHAP.  IV.]         CHICAGO,   ETC.    RAILWAY    CO.    V.    MINNESOTA.  663 

rate,  and  the  comijany  by  a  peremptory  writ  was  ordered  to  change  its 
rates  as  required  by  the  coimiussion.  Costs  were  given  against  the 
company  and  a  reargument  was  refused.  Thereupon  the  compau}' 
brought  this  writ  of  error.] 

Mr.  John  W.  Cary,  for  plaintiff  in  error. 

Mr.  Moses  E.  Clajq)  and  Mr.  II.  W.  Childs.,  for  defendant  in  error. 

Mr.  W.  C.  Goudi/,  for  appellant. 

Mr.  Justice  Blatciifokd,  after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court. 

The  opinion  of  the  Supreme  Court  of  Minnesota  is  reported  in  38 
Minnesota,  281.  In  it  the  court  in  the  first  place  construed  the  statute 
on  the  question  as  to  whether  the  court  itself  had  jurisdiction  to  enter- 
tain the  proceeding,  and  held  that  it  had.  Of  course,  we  cannot  review 
this  decision. 

It  next  proceeded  to  consider  the  question  as  to  the  nature  and  ex- 
tent of  the  powers  granted  to  the  commission  by  the  statute  in  the  matter 
of  fixing  the  rates  of  charges.  On  that  subject  it  said:  "It  seems  to 
us  that,  if  language  means  anything,  it  is  perfectly-  evident  that  the 
expressed  intention  of  the  legislature  is  that  the  rates  recommended 
and  published  by  the  commission  (assuming  that  the}'  have  proceeded 
in  the  manner  pointed  out  by  the  Act)  should  be  not  simply  advisory, 
nor  merely  prima /"acie  equal  and  reasonable  but  final  and  conclusive  as 
to  what  are  lawful  or  equal  and  reasonable  charges  ;  that,  in  proceed- 
ings to  compel  compliance  with  the  rates  thus  published,  the  law  neither 
contemplates  nor  allows  an}'  issue  to  be  made  or  inquiry  had  as  to  their 
equality  and  reasonableness  in  fact.  Under  the  provisions  of  the  Act, 
the  rates  thus  published  are  the  onl}-  ones  that  are  lawful,  and  there- 
fore, in  contemplation  of  law,  the  onl}'  ones  that  are  equal  and  reason- 
able ;  and,  hence,  in  proceedings  like  the  present,  there  is,  as  said 
before,  no  fact  to  traverse,  except  the  violation  of  the  law  in  refusing 
compliance  with  the  recommendations  of  the  commission.  Indeed,  the 
language  of  the  Act  is  so  plain  on  that  point  that  argument  can  add 
nothing  to  its  force." 

It  then  proceeded  to  examine  the  question  of  the  validitj'  of  the  Act 
under  the  Constitution  of  Minnesota,  as  to  whether  the  legislature  was 
authorized  to  confer  upon  the  commission  the  powers  given  to  the  lat- 
ter by  the  statute.  It  held  that,  as  the  legislature  had  the  power 
itself  to  regulate  charges  b}'  railroads,  it  could  delegate  to  a  commis- 
sion the  power  of  fixing  such  charges,  and  could  make  the  judgment 
or  determination  of  the  commission  as  to  what  were  reasonable  charges 
final  and  conclusive.  .  .  .  [Here  follows  a  histor}'  of  the  plaintiff  in 
error,  showing  that  it  succeeded  to  the  franchises  of  various  other 
railroad  companies.] 

It  is  contended  for  the  railway  company  that  the  State  of  Minnesota 
is  bound  b}-  the  contract  made  b}-  the  Territory  in  the  charter  granted  to 
the  Minneapolis  and  Cedar  Valley  Railroad  Company  ;  that  a  contract 
existed  that  the  company  should  have  the  power  of  regulating  its  rates 


\./4„,<>r  >-rvwv 


yiM'^^ 


/^yi^  664  CHICAGO,    ETC.    RAILWAY   CO.    V.    MINNESOTA.        [CHAP.  IV. 

^  of  toll ;  that  any  legislation  by  the  State  infringing  upon  that  right 

4/4  impairs  the  obligation  of  the  contract ;  that  there  was  no  provision  in 

/J  Lj  the  charter  or  in  an^'  general  statute  reserving  to  the  Territor}'  or  to 
the  State  the  right  to  alter  or  amend  the  charter ;  and  that  no  subse- 
quent legislation  of  the  Territory'  or  of  the  State  could  deprive  the 
/^  directors  of  the  company  of  the  power  to  fix  its  rates  of  toll,  sub- 
^  ■''  ject  only  to  the  general  provision  of  law  that  such  rates  should  be 

„/4X^        reasonable. 

1^  15ut  we  are  of  opinion  that  the  general  language  of  the  ninth  section 

C^Vt  "     of  the  charter  of  the  Minneai)olis  and  Cedar  Vallej'  Railroad  Company' 

a^hJiKi      cannot  be  held  to  constitute  an  irrepealable  contract  with  that  companj' 

that  it  should  have  the  right  for  all  future  time  to  prescribe  its  rates  of 

(  iOA/^    toll,  free  from  all  control  b}-  the  legislature  of  the  State.  .  .  . 

-*  -y-  ■j^        There  is  nothing  in  the  mere  grant  of  power,  b}'  section  9  of  the 

charter,  to  the  directors  of  the  company,  to  make  needful  rules  and 

'Tc^  '         regulations  touching  the  rates  of  toll  and  the  manner  of  collecting  the 

«7  j  same,  which  can  be  properlj*  interpreted  as  authorizing  us  to  hold  that 

I  the  State  parted  with  its  general  authority  itself  to  regulate,  at  any  time 

l^^y/i^^'^''^^  in  the  future  when  it  might  see  fit  to  do  so,  the  rates  of  toll  to  be  col- 

Li^Jto,        lected  by  the  company. 

_^        _  In  Stone  v.  Farmers'  Loan  and  Trust  Co.,  IIG  U.  S.  307,  325, 

O.J^i/^^^^^'^^  the  whole  subject  is  full}-  considered,  the  authorities  are  cited,  and  the 

jL.  conclusion  is  arrived  at,  that  the  right  of  a  State  reasonably  to  limit 

'  the  amount  of  charges  b}'  a  railroad  compan}'  for  the  transportation  of 

ir[M^  persons  and  property  within  its  jurisdiction  cannot  be  granted  away  by 

jyiX^^  •     its  legislature  unless  b}'  words  of  positive  grant  or  w^ords  equivalent  in 

law ;  and  that  a  statute  which  grants  to  a  railroad  company  the  right 

^  "from  time  to  time  to  fix,  regulate  and  receive  the  tolls  and  charges 

-.       by  them  to  be  received  for  transportation,"  does  not  deprive  the  State 

1/^aM^   of  its  power,  within  the  limits  of  its  general  authority,  as  controlled  by 

u,         the  Constitution  of  the  United  States,  to  act  upon  the  reasonableness 

AcCQ,        of  the  tolls  and  charges  so  fixed  and  regulated.     But,  after  reaching 

f  this  conclusion,  the  court  said  (p.  331)  :  "  From  what  has  thus  been 

'^''^'^^      said,  it  is  not  to  be  inferred  that  this  power  of  limitation  or  regulation 

ij^^^YU  •     ^^  itself  without  limit.     This  power  to  regulate  is  not  a  power  to  de- 

,     ^    stro}-,  and  limitation  is  not  the  equivalent  of  confiscation.     Under  pre- 

/3/4'^^^'Vw  '  tence  of  regulating  fares   and   freights,   the    State   cannot   require  a 

v/      '         railroad  corporation    to  carry   persons  or   property  without   reward  ; 

^    '  neither  can  it  do  that  which  in  law  amounts  to  a  taking  of  private 

JLu^mA-  property  for   puljlic  use    without  just  compensation,   or  without  due 

.        .         process  of  law." 

AaJ.  ^'        There  being,  therefore,  no  contract  or  chartered  right  in  the  railroad 
'     ,  company  which  can  prevent  the  legislature  from  regulating  in  some 

form  the  charges  of  the  company  for  transportation,  the  question  is 
rj^  ,         whether  the  form  adopted  in  the  present  case  is  valid. 

The  construction   put  upon  the  statute  by  the   Supreme  Court  of 
r^  ,-yji^    Minnesota  must  be  accepted  by  this  court,  for  the  purposes  of  the  pres- 


/U^ 


CHAP.  IV.]         CHICAGO,    ETC.    RAILWAY   CO.    V.    MINNESOTA. 


ent  case,  as  conclusive  and  not  to  be  re-examined  here  as  to  its  propriety 
or  accurac}'.  Tlic  Suureme  Court  authoritatively  declares  that  it  is  the 
expressed  intention  of  the  Legislature  of  Minnesota,  by  the  statute,  that 
the  rates  recommended  and  published  by  the  commission,  if  it  proceeds 
in  the  manner  pointed  out  by  the  Act,  are  not  simply  advisory,  nor 
merely  prima  facie  equal  and  reasonable,  but  final  and  conclusive  as 
to  wliat  are  ec[ual  and  reasonable  charges  ;  that  the  law  neither  con- 
tem|)lates  nor  allows  any  issue  to  be  made  or  inquiry  to  be  had  as  to 
their  equality  or  reasonableness  in  fact 
rates  published  by  the  commission  are  the 


that,  under  the  statute,  the 
only  ones  that  are  lawful. 


a nd,  therefore,  in  contemplation  of  law  the  only  ones  that  are  equa  1 
and  reasonable  ;  and  that,  in  a  proceeding  for  a  mandamus  under  the 
statute,  there  is  no  fact  to  traverse  except  the  violation  of  law  in  not 
complying  with  the  recommendations  of  the  commission.  In  oth^r 
words,  although  the  railroad  company  is  forbidden  to  establish  rates 
that  are  not  equal  and  reasonable,  there  is  no  power  in  the  courts  to 


CtA. 


stay  the  hands  of  the  commission,  if  it  chooses  to  establish  rates  that 
are  unequal  and  unreasonable.  ^ 

This  being  the  construction  of  the  statute  by  which  w^e  aye  bound  in 
considering  the  present  case,  we  are  of  opinion  that,  so  construed,  it 
conflicts  with  ihe  Constitution  of  the  United  States  in  the  particulars 
complained  of  by  the  railroad  company.  It  deprives  the  company  ql 
its  liallt  W  ajgdigjaljiw^^tigation,  by  (\nQ  process  of  law^  nnder  the 
forms  and  with  the  machinery  provided  by  the  wisdom  of  successive 
ag£a_Cmf  the  investigation  judicially  of  the  truth  of  a  matter  in  contro- 
versy,  and  substitutes  theref^r^as  an  absolute  finality,  the  action  of  a. 
railroad  nommission  ffillkhj"  view  of  the  powers  conceded  t,n  itjj^ 
the  State  court,  cannot  be  regarded  as  clothed  with  judicial  functions 
or  possessing  the  machinery  of  a  court  of  justice. 

Under  section  8  of  the  statute,  which  the  Supreme  Court  of  Minne- 
sota says  is  the  onl}'  one  which  relates  to  the  matter  of  the  fixing  by 
the  commission  of  general  schedules  of  rates,  and  which  section,  it  says, 
fully  and  exclusively  provides  for  that  subject,  and  is  complete  in 
itself,  all  that  the  commission  is  required  to  do  is,  on  the  filing  with  it 
by  a  railroad  company  of  copies  of  its  schedules  of  charges,  to  "•  find  " 
that  any  part  thereof  is  in  any  I'espect  unequal  or  unreasonable,  and 
then  it  is  authorized  and  directed  to  compel  the  company  to  change  the 
same  and  adopt  such  charge  as  the  commission  "  shall  declare  to  be 
equal  and  reasonable,"  and,  to  that  end,  it  is  required  to  inform  the 
company  in  writing  in  what  respect  its  charges  are  unequal  and  un-  -fj^  ^  rj 
reasonuble.     No  hearing  is  provided  for.  no  summons  or  notice  to  thei/^  ^^ 

nffmvu 


No  hearing  is  provided  for,  no  summons 
company  before  the    commission    has    found  what  it   is  to  find  and 


declared  what  it  is  to  declare,  no  opportunity"  provided  for  the  company 
to  introduce  witnesses  before  the  commission,  in  fact,  nothing  w-hich  Z'^*'^'^'^^ 
has  the  semblance  of  due  process  of  law  ;  and  although,  in  the  present  "t/zg^A^ 
case,  it  appears  that,  prior  to  the  decision  of  the  commission,  the  com-         /? 
pany  appeared  before  it  by  its  agent,  and  the  commission  investigated  /^'^wU^'H 
the  rates  charged  by  the  company  for  transporting  milk,  yet  it  does  y^/ig^dWU'^ 


J.L 


lA. 


G66  CHICAGO,    ETC.    RAILWAY    CO.    V.   MINNESOTA.         [CHAP.  IV. 

^l/\Ay(;iJtH  i^ot  appear  wluit  the  character  of  the  investigation  was  or  how  the 

r    ^  result  was  arrived  at. 
^^JA.  vMX      YiS  the  second  section  of  the  statute  in  question,  it  is  provided  that 
/  "^  _     all  charges  made  by  a  common  carrier  for  the  transportation  of  pas- 
sengers or  property  shall  be  equal  and  reasonable.     Under  this  pro- 
"jXjl^  •        vision,  the  carrier  has  a  right  to  make  equal  and  reasonable  charges  for 
such  transportation.     In  the  present  case,  the  return  alleged  that  the 
rate  of  charge  fixed  bj'  the  counnission  was  not  equal  or  reasonable,  and 
the  Supreme  Court  held  that  the  statute  deprived  the  company  of  the 
right  to  show  that  judicially.     The  question  of  the  reasonableness  of  a 
rate  of  charge  for  transportation  by  a  railroad  company,  involving  as  it 
^^^^''^^^^^     does  the  element  of  reasonableness  both  as  regards  the  company  and 
lAj^rW'       as  regards  the  public,  is  eminently  a  question  for  judicial  investigation, 
L  J*     J      requiring  due  process  of  law  for  its  determination.     If  the  company  is 
^'^"^  ^TV^eprived  of  the  power  of  charging  reasonable  rates  for  the  use  of  its 
isi^iA.  ■r'-og^jiopcrty,  and  such  deprivation  takes  place  in  the  absence  of  an  investi- 
gation by  judicial  machinery,  it  is  deprived  of  the  lawful  use  of  its 
l)roperty,  and_thus,  in  substance  and  effect^  ofJ,he  property  itself,  with- 
out due  process  qf^law  and  in  violation  of  the  Constitution  of  the 
United  States  ;  and  in  so  far  as  it  is  thus  deprived,  while  other  persons 
4  hf     ^"^^  permitted  to  receive  reasonable  profits  upon  their  invested  capital, 
5     the  company  is  deprived  of  the  equal  protection  of  the  laws. 
■\!L   jvA-o  -       jt  ig  provided  by  section  4  of  article  10  of  the  Constitution  of  Minne- 
cOv\   *^7       sota  of  1857,  that  '•  lands  may  be  taken  for  public  waj',  for  the  pur- 
-^  pose  of  granting  to  any  corporation  the  franchise  of  way  for  public 

use,"  and  that  "all  corporations,  being  common  carriers,  enjoying  the 
/      right  of  way  in  pursuance  to  the  provisions  of  this  section,  shall  be 
(^  bound  to  carry  the   mineral,  agricultural  and   other  productions  and 

manufactures  on  equal  and  reasonable  terms."  It  is  thus  perceived 
that  the  provision  of  section  2  of  the  statute  in  question  is  one  enacted 
in  conformity  with  the  Constitution  of  Minnesota. 

The  issuing  of  the  peremptory  writ  of  mandamus  in  this  case  was, 

therefore,   unlawful,   because  in   violation  of  the  Constitution  of  the 

United  States  ;  and  it  is  necessary  that  the  relief  administered  in  favor 

of  the  plaintiff  in  error  should  be  a  reversal  of  the  judgment  of  the 

?        Supreme  Court   awarding  that  writ,    and  an   instruction   for  further 

>t<L^         proceedings  by  it  not  inconsistent  with  the  opinion  of  this  court. 

In  view  of  the  opinion  delivered  by  that  court,  it  may  be  imi)ossible 
^^  *  for  any  further  proceedings  to  be  taken  other  than  to  dismiss  the  pro- 
c-c/ft/tuM  ceeding  for  a  mandamus,  if  the  court  should  adhere  to  its  opinion  that, 
llC\^oJ'^  under  the  statute,  it  cannot  investigate  judicially  the  reasonableness  of 
the  rates  fixed  by  the  commission.  Still,  the  question  will  be  open  for 
\k'  l^<  review  ;  and 

(    J  jU  The  judgment  of  this  court  is,  that  the  judgment  of  the  Supreme 

'^'^  Court  rf  Min?iesota,  entered  3fay  4,  1888,  aicarding  a  peremp- 

'X  Qi  i  CSMT"      tory  writ  of  mandamus  m  tliis  case,  he  reversed,  and  tJie  case  be 
remanded  to  that  court,  witJi  an  instruction  for  further  proceed- 
us.xHa  yU/iA       {^pg  jiQf  inconsistent  with  the  omnion  of  this  court. 


\iAM^t 


CHAP.  IV.]         CHICAGO,   ETC.    RAILWAY    CO.    V.   MINNESOTA.  G67 

Mr.  Justice  Miller  concurring. 

I  concur  wilh  some  hesitation  in  the  judgment  of  the  court,  but  wish 
to  make  a  few  suggestions  of  the  principles  whicli  I  think  should  govern 
this  class  of  questions  in  the  courts.  Not  desiring  to  make  a  dissent, 
nor  a  prolonged  argument  in  favor  of  any  views  I  may  have,  I  will 
state  them  in  the  form  of  propositions. 

1.  In  regard  to  the  business  of  common  carriers  limited  to  points 
within  a  single  State,  that  State  has  the  legislative  power  to  establish 
the  rates  of  compensation  for  such  carriage. 

2.  The  power  which  the  legislature  has  to  do  this  can  be  exercised 
through  a  commission  which  it  may  authorize  to  act  in  the  matter,  such 
as  the  one  appointed  by  the  Legislature  of  Minnesota  by  the  Act  now 
under  consideration. 

3.  Neither  the  legislature  nor  such  commission  acting  under  the 
authority  of  the  legislature,  can  establish  arbitrarily  and  without  regoFd 
to  justice  and  right  a  tariff  of  rates  for  such  transportation,  which  is  so 
unreasonable  as  to  ijractically  destroy  the  value  of  property  of  persons 
engaged  in  the  carrying  business  on  the  one  hancTV  nor  so  exbi-bTEa'nt 
and  extravagant  as  to  be  in  utter  disregard  of  the  rights  of  the  public 
for  the  use  of  such  transportation  on  the  other. 

4.  In  either  of  these  classes  of  cases  there  is  an  ultimate  remedy  by  q     /    '    i 
the  parties  aggrieved,  in  the  courts,  for  relief  against  such  oppressive       ^'^'-^^^^f-^ 
legislation,  and  especially'  in  the  courts  of  the  United  States,  where  C\»  AMn^x- 
the  tariff  of  rates  established  either  by  the  legislature  or  by  the  com- 
mission is  such  as  to  deprive  a  party  of  his  property  without  due 

process  of  law. 

5.  But  until  the  judiciary  has  been  appealed  to,  to  declare  the  regula- 
tions made,  whether  by  the  legislature  or  by  the  commission,  voidable 
for  the  reasons  mentioned,  the  tariff  of  rates  so  fixed  is  the  law  of  the 
land,  and  must  be  submitted  to  both  by  the  carrier  and  the  parties  with 
whom  he  deals. 

6.  That  the  proper,  if  not  the  onl}',  mode  of  judicial  relief  against 
the  tariff  of  rates  established  by  the  legislature  or  by  its  commission, 
is  by  a  bill  in  cliancery  asserting  its  unreasonable  character  and  its 
conflict  with  the  Constitution  of  the  United  States,  and  asking  a  decree 
of  court  forbidding  the  corporation  from  exacting  such  fare  as  excessive, 
or  establishing  its  right  to  collect  the  rates  as  being  within  the  limits  of 
a  just  compensation  for  the  service  rendered. 

7.  That  until  this  is  done  it  is  not  competent  for  each  individual 
having  dealings  with  the  carrying  corporation,  or  for  the  corporation 
with  regard  to  each  individual  who  demands  its  services,  to  raise  a 
contest  in  the  courts  over  the  questions  which  ought  to  be  settled  in 
this  general  and  conclusive  method. 

8.  But  in  the  present  case,  where  an  application  is  made  to  the 
Supreme  Court  of  the  State  to  compel  the  common  carriers,  namel}', 
the  railroad  companies,  to  perform  the  services  which  their  dutj'  re- 
quires them  to  do  for  the  general  public,  which  is  equivalent  to  estab- 


668  CHICAGO,   ETC.   RAILWAY   CO.   V.   MINNESOTA.        [CHAP.  IV. 

lisliiug  b}"  judiciiil  proceeding  the  reasonableness  of  the  charges  fixed 

b}'  the  commission,  I  think  the  court  has  the  same  right  and  duty  to 

inquire  into  the  reasonableness  of  the  tariff  of  rates  established  by  the 

commission  before  granting  such  relief,   tliat  it  would  have  if  called 

upon  so  to  do  by  a  bill  in  ch a n ce ry . 

x,^  9.   I  do  not  agree  that  it  was  necessary  to  the  validity  of  the  action 

^     of  the  commission  that  previous  notice  should  have  been  given  to  all 

-7^^^- common  carriers  interested  in  the  rates  to  be  established,  nor  to  any 

-■^-^^^^       particular  one  of  them,  any  more  than  it  would  have  been  necessary, 

;  '>'">-»-*^a^ -which  I  think  it  is  not,  for  the  legislature  to  have  given  such  notice  if 

-'~^»  it  had  established  such  rates  by  legislative  enactment. 

10.  But  when  the  question  becomes  a  judicial  one,  and  the  validit}' 
and  justice  of  these  rates  are  to  be  established  or  rejected  by  tlie  judg- 
ment of  a  court,  it  is  necessary  that  the  railroad  corporations  interested 
in  thp  fare  to  be  considered  should  have  notice  and  have  a  right  to  be 
heard  on  the  question  relating  to  such  fare,  which  I  have  pointed  out 
as  judicial  questions.  F'or  the  refusal  of  the  Supreme  Court  of  Minne- 
sota to  receive  evidence  on  this  subject,  I  think  the  case  ought  to  be 
reversed  on  the  ground  that  this  is  a  denial  of  due  process  of  law  in  a  . 
proceeding  which  takes  the  property  of  the  com|)any,  and  if  this  be  a 
just  construction  of  tbe  statute  of  Minnesota  it  is  for  that  reason  void.  ^ 

1  Mr.  Justice  Bkadley  (with  whom  concurred  Mr.  Justice  Gray  and  Mr. 
Justice  Lamar)  dissenting. 

I  cannot  agree  to  the  decision  of  the  court  in  tliis  case.     It  practically  overrules 
Munii  V.  Illinois,  94  U.  S.  1 13,  and  the  several  railroad  cases  that  were  decided  at  the 
same  time.     The  governing  principle  of  those  cases  was  that  the  regulation  and  settle- 
ment of  the  fares  of  railroads  and  other  public  accommodations  is  a  legislative  prerog- 
ative and  not  a  judicial  one.     This  is  a  principle  which  I  regard  as  of  great  importance.  ^   J   .    . 
When  a  railroad  company  is  chartered,  it  is  for  the  purpose  of  performing  a  duty   l^^^v^ 
ffhich  belongs  to  the  State  itself.     It  is  chartered  as  an  agent  of  the  State  for  fur-     jicctu 
nishing  public  accommodation.     The  State  might  build  its  railroads  if  it  saw  fit.     It  is  A' 

'  /J  j^'  its  duty  and  its  prerogative  to  provide  means  of  intercommunication  between  one  part 
iAX<t^^^  of  its  territory  and  another.^? 'And  this  duty  is  devolved  upon  the  legislative  depart- 
1.  '  %  ment.  If  the  legislature  commissions  private  parties,  whether  corporations  or  indi- 
'^*"*'"^'^  T  viduals.  to  perform  this  duty,  it  is  its  prerogative  to  fix  the  fares  and  freights  which 
^^U^t~-  they  may  charge  for  their  services.  When  merely  a  road  or  a  canal  is  to  be  con- 
/L  ,  ^  structed,  it  is  for  the  legislature  to  fix  the  tolls  to  be  paid  by  those  who  use  it ;  when  a 

company  is  chartered  not  only  to  build  a  road,  but  to  carry  on  public  transportation 
upon  it.  it  is  for  the  legislature  to  fix  the  charges  for  such  transportation. 

But  it  is  said  that  all  charges  should  be  reasonable,  and  tliat  none  but  reasonable 
charges  can  be  exacted  ;  and  it  is  urged  that  what  is  a  reasonable  charge  is  a  judicial 
question.  On  the  contrary,  it  is  pre-eminently  a  legislative  one,  involving  consider- 
ations of  policy  as  well  as  of  remuneration  ;  and  is  usually  determined  by  the  legi.sla- 
ture,  by  fixing  a  maximum  of  charges  in  the  charter  of  the  company,  or  afterwards, 
if  its  hands  are  not  tied  by  contract.  If  this  maximum  is  not  exceeded,  the  courts 
cannot  interfere.  When  the  rates  are  not  thus  determined,  they  are  left  to  the  dis- 
cretion of  the  company,  subject  to  the  express  or  implied  condition  that  they  shall 
be  reasonable ;  express,  when  so  declared  by  statute;  implied,  by  the  common  law, 
when  the  statute  is  silent ;  and  the  common  law  has  effect  by  virtue  of  the  legislative 
will. 

Thus,  the  legislature  either  fixes  the  charges  at  rates  which  it  deems  reasonable  ; 
or  merely  declares  that  they  shall  jj^  reasonable ;  and  it  is  only  in  the  latter  case. 


{ 


CHAP.  IV.]         CHICAGO,    ETC.    RAILWAY   CO.    V.    MINNESOTA.  669 

where  what  is  reasonable  is  left  open,  that  the  courts  have  juri-sdiction  of  tlie  subject. 
I  repeat ;  When  the  legislature  declares  that  the  charges  shall  be  reasonable,  or, 
which  is  the  same  thing,  allows  the  connnon-law  rule  to  that  effect  to  prevail,  ami 

be  had  to  the  courts  to  inquire  judicially 


I   leaves  the  matter  there;  then  resort  may 
whether  the  charges  are  reasonable/  JTlieu, 


u,  and  not  till  then,  is  it  a  judicial  question. 
But_the legislature  hasj;hej-igjit,  aud^itJs~its_prerogadve,  if_it  chooses  to  exercise  h;, 
to  declare  whatTs^rea-sonable.  '~  ~ 

iThis  is  just  where  I  differ  from  the  majority  of  the  court.  They  say  in  effect,  if 
not  in  terms,  that  the  final  tribunal  of  arbitrament  is  the  judiciary ;  I  sav  it  is  the 
legislature.  I  hold  that  it  is  a  legislative  question,  not  a  judicial  one,  unless  the 
leofislature  or  the  law  (which  is  the  same  thing),  has  made  it  judicial,  by  prescribing 
the  rule  that  tlie  charges  sh.all  be  reasonable,  and  leaving  it  there. 

It  is  alwavs  a  delicate  thing  for  the  courts  to  make  an  issue  with  the  legislative 
department  of  the  government,  and  they  should  never  do  so  if  it  is  possible  to  avoid 
jt.  ^By  the  decisio'u  now  made  we  declare,  in  effect,  that  the  judiciary,  and  not  the 
legislature,  is  the  final  arbiter  in  the  regulation  of  fares  and  freights  of  railroads  and 
the  charges  of  other  public  accommodations.N  It  is  an  assumption  of  authority  on  the 
part  of  the  judiciary  which,  it  seems  to  me,  with  all  due  deference  to  the  judgment 
of  my  brethren,  it  has  no  right  to  make.  The  assertion  of  jurisdiction  by  this  court 
makes  it  the  duty  of  every  court  of  general  jurisdiction,  State  or  Federal,  to  entertain 
complaints  against  the  decisions  of  the  boards  of  commissioners  appointed  by  the 
States  to  regulate  their  railroads ;  for  all  courts  are  bound  by  the  Constitution  of  the 
United  States,  the  same  as  we  are.     Our  jurisdiction  is  merely  appellate. 

The  incongruity  of  this  position  will  appear  more  distinctly  by  a  reference  to  the 
nature  of  the  cases  under  consideration.  The  question  presented  before  the  commis- 
sion in  each  case  was  one  relating  simply  to  the  reasonableness  of  the  rates  charged 
by  the  companies.  —  a  question  of  more  or  less.  In  the  one  case  the  company 
charged  three  cents  per  gallon  for  carrying  milk  between  certain  points.  The  com- 
mission deemed  this  to  be  unreasonable,  and  reduced  the  charge  to  2|  cents.  In  the 
other  case  the  company  charged  |!1.25  per  car  for  handling  and  switching  empty  cars 
over  its  lines  within  the  city  of  Minneapolis,  and  $1.50  for  loaded  cars;  and  the  com- 
mission decided  that  $1.00  per  car  was  a  sufficient  charge  in  all  cases.i  The  companies 
complain  that  the  charges  as  fixed  by  the  commission  are  unreasonably  low,  and  that 
they  are  deprived  of  their  property  without  due  process  of  law  ;  that  they  are  entitled 
to  a  trial  by  a  court  and  jury,  and  are  not  barred  by  the  decisions  of  a  legislative 
commission.  The  State  court  held  that  the  legislature  had  the  right  to  establish 
such  a  commission,  and  that  its  determinations  are  binding  and  final,  and  that  the 
courts  cannot  review  them.  This  court  now  reverses  that  decision,  and  holds  the 
contrary.  In  my  judgment  the  State  court  was  right,  and  the  establishment  of  the 
commission,  and  its  proceedings,  were  no  violation  of  the  constitutional  prohibition 
against  depriving  persons  of  their  property  without  due  process  of  law. 

I  think  it  is  perfectly  clear,  and  well  settled  by  the  decisions  of  this  court,  that  the 
legislature  might  have  fi.xed  the  rates  in  question.  If  it  had  done  so,  it  would  have 
done  it  through  the  aid  of  committees  appointed  to  investigate  the  subject,  to  acquire 
information,  to  cite  parties,  to  get  all  the  facts  before  them,  and  finally  to  decide 
and  report.  No  one  could  have  said  that  this  was  not  due  process  of  law.  And  if 
the  legislature  itself  could  do  this,  acting  by  its  committees,  and  proceeding  accord- 
ing  to  the  usual  forms  adopted  by  such  bodies,  I  can  see  no  good  reason  why  it 
might  not  delegate  the  duty  to  a  board  of  commissioners,  charged,  as  the  board  in 
this  case  was,  to  regulate  and  fix  the  charges  so  as  to  be  equal  and  reas(3nable. 
Such  a  board  would  have  at  its  command  all  the  means  of  getting  at  the  truth  and 
ascertaining  the  reasonableness  of  fares  and  freights,  which  a  legii^l.ative  committee 
has.  It  might,  or  it  might  not,  swear' witnesses  and  examine  parties.  Its  duties 
being  of  an  administrative  character,  it  would  have  the  widest  scope  for  examination 
and  inquiry.     All  means  of  knowledge  and  information  would  be  at  its  command, — 

1  The  report  does  not  give  the  facts  relative  to  this  case.  —  Ed. 


G70  CHICAGO,    ETC.    RAILWAY   CO.    V.    xMINNESOTA.        [CIIAP.  IV. 

just  as  they  would  be  at  the  command  of  the  legislature  which  created  it.     Such,  a 
body,  though  not  a  court,  is  a  proper  tribunal  for  the  duties  im])Osed  upon  it. 

In  the  case  of  Davidson  v.  C'lti/  of  New  Orleans,  90  U.  S.  97,  we  decided  that  the 
appointment  of  a  board  of  assessors  for  assessing  damages  was  not  only  due  process 
of  law,  but  the  proper  method  for  making  assessments  to  distribute  the  burdeu  of  a 
public  work  amongst  those  who  are  benefited  by  it.  No  one  questions  the  constitu- 
tionality or  propriety  of  boards  for  assessing  property  for  taxation,  or  for  the  im- 
provement of  streets,  sewers  and  the  like,  or  of  commissions  to  establish  county  seats, 
and  for  doing  many  other  tilings  appertaining  to  the  administrative  management  of 
pu))lic  affairs.  Ihie  pnicfT^-;  of  ]n,w  dnr-s  ii"t  nl^Yi7V  "-'i'""'-"  ^  f'"'"-*^  It  merely  re- 
Quires  such  tribunals  amlj^rdcfcdiiifs  ns  nic  prupcr  to  ilif  sn I i^jf'rj;^ Jn_lin_ml_  In  the 
Uailrnad  Commission  Cases,  116  U.  S.  307,  we  held  that  aboard  of  commissioners  is 
a  proper  tribunal  for  determining  the  proper  rates  of  fare  and  freight  on  the  rail- 
roads of  a  State.  It  seems  to  me.  therefore,  that  the  law  of  Minnesota  did  not  pre- 
scribe anything  that  was  not  in  accordance  witli  due  process  of  law"  in  creating  such  a 
board,  and  investing  it  with  the  powers  in  question. 

It  is  complained  that  the  decisions  of  the  board  are  final  and  without  appeal.  So 
are  the  decisions  of  the  courts  in  matters  within  their  jurisdiction.  There  must  be  a 
final  tribunal  somewhere  for  deciding  every  question  in  the  world.  Injustice  may  take 
place  in  all  tribunals.  All  human  institutions  are  imperfect  —  courts  as  well  as  com- 
missions and  legislatures.  Whatever  tribunal  has  jurisdiction,  its  decisions  are  final 
and  conclusive  unless  an  appeal  is  giveu  therefrom.  The  important  question  alwavs 
is.  wh.it  is  the  lawful  tribunal  for  the  particular  case  ?  In  my  judgment,  in  tlse  pres- 
ent case,  the  proper  tribunal  was  the  legislature,  or  the  board  of  commissioners 
which  it  created  for  the  purpose. 

If  not  in  terms,  yet  in  effect,  the  present  cases  are  treated  as  if  the  constitutional 
prohibition  was,  that  no  State  shall  take  private  property  for  public  use  Avitliout  just 
compensation,  —  and  as  if  it  was  our  duty  to  judge  of  the  compensation.  But  there 
is  no  such  cl.ause  in  the  Constitution  of  the  United  States.  The  Fifth  Amendment  is 
prohibitory  upon  the  Federal  government  only,  and  not  upon  the  State  governments. 
In  this  matter,  —  just  compensation  for  property  taken  for  public  use,  —  the  States 
make  their  own  regulations,  by  constitution,  or  otherwise.  They  are  only  required  by 
the  Federal  Constitution  to  provide  "  due  process  of  law."  It  was  alleged  in  David- 
son v.  New  Orleans,  96  U.  S.  97,  that  the  property  assessed  was  not  benefited  by  the 
improvement ;  but  we  held  that  that  was  a  matter  with  which  we  would  not  inter, 
fere  ;  the  question  was,  whether  there  was  due  process  of  law.  p.  106.  If  a  State 
court  renders  an  unjust  judgment,  we  cannot  remedy  it. 

I  do  not  mean  to  say  that  the  legislature,  or  its  constituted  board  of  commission- 

«      ers,  or  other  legislative  agency,  may  not  so  act  as  to  deprive  parties  of  their  property 

^'^-^-'^^^^''^^^^Nvithout  due  process  of  law.     The  Constitution  contemplates  the  possibility  of  such  an 

^^^    invasion  of  rights.     But,  acting  within  their  jurisdiction  (as  in  these  cases  they  have 

J.  \A/\i>y^   done),  the  invasion  should  be  clear  and  unmistakable  to  bring  the  case  within  that 

Aa    th  ''^  A^t-ategory.     Nothing  of  the  kind  exists  in  the  cases  before  us.     The  legislature,  in 

(Vj"^^     establishing  the  commission,  did  not  exceed  its  power ;  and  the  commission,  in  acting 

JCC\N>.        upon  the  cases,  did  not  exceed  its  jurisdiction,  and  was  not  chargeable  with  fraudulent 

behavior.     There  was  merely  a  difference  of  judgment  as  to  amount,  between  the 

commission  and  the  companies,  without  any  indication  of  intent  on  the  part  of  the 

former  to  do  injustice.     The  board  may  have  erred ;  but  if  they  did,  as  the  matter 

was  within  their  rightful  jurisdiction,  tlieir  decision  was  final  and  conclusive  unless 

their  proceedings  could  be  impeached  for  fraud.     Denrivation  of  property  by  mere 

arbitrary  power  on  the  part  of  tlie  legislature,  or  fraud  on  the  part  of  the  commission, 

are  the  only  grounds  on  which  judicial  relief  may  be  son^-ht  an^ainst  their  action. 

There  was,  in  truth,  no  deprivation  of  property  in  these  cases  at  all.     There  was  merely 

a  regulation  as  to  the  enjoyment  of  property,  made  by  a  strictly  competent  authority. 

in  a  matter  entirely  within  its  jurisdiction. 

It  may  be  that  our  legislatures  are  invested  with  too  much  power,  open,  as  they  are, 
to  influences  so  dangerous  to  the  interests  of  individuals,  corporations  and  society.    But 


CHAP.  IV.]  BUDD  V.    NEW  YORK.  671 

piu'h  is  the  constitution  of  our  republican  form  of  government ;  and  we  are  bound  to 
al)ide  by  it  until  it  can  be  corrected  in  a  legitimate  way.  If  our  legislatures  become 
too  arbitrary  in  the  exercise  of  their  powers,  tiie  people  always  have  a  remedy  in  their 
hands :  thev  may  at  any  time  restrain  tiicni  by  coustitutioiuil  limitations.  But  so  long 
as  they  remain  iuyested  with  the  powers  that  ordinarily  belon}!:  to  the  lc;;islative 
branch  of  government,  they  are  entitled  to  exercise  those  powers,  amongst  which,  in 
my  judgment,  is_tl]at  of  the  regulation  of_railroads  and  other  public  means  of  inter- 
commuuication,  and  the  burdens  and  charges  which  those  who  own  them  are  authorized 
to  impose  upon  the  public. 

I  am  authorized  to  say  that  Mr.  Justice  Gray  and  Mr.  Justice  Lamar  agree  with 
me  in  this  dissenting  opinion. ^ 

In  Bndd  v.  N.  Y.,  14.3  U.  S.  .517  (1892),  the  Supreme  Court  of  the  United  States, 
after  reaffirming  the  doctrine  of  Munn  v.  I//.,Q-i  U.  S.  113  (for  wliich  see  that  case, 
infra,  p.  743),  Blatchford,  J.,  for  the  court  said:  "It  is  further  contended  that, 
under  the  decision  of  this  court  in  Chicago,  ^-c.  Railway  Co.  v.  Minnesota,  134  U.  S. 
418,  the  fixing  of  elevator  charges  is  a  judicial  question,  as  to  whether  they  are  reason- 
able or  not ;  that  the  statute  must  permit  and  provide  for  a  judicial  settlement  of  the 
charges  ;  and  that,  by  the  statute  under  consideration,  an  arbitrary  rate  is  fixed,  a6d 
all  inquiry  is  precluded  as  to  whether  that  rate  is  reasonable  or  not. 

"But  this  is  a  mis.apprehension  of  the  decision  of  this  court  in  the  case  referred  to. 
In  that  case,  the  Legislature  of  Minnesota  had  passed  an  Act  which  established  a  rail- 
road and  warehouse  commission,  and  the  Supreme  Court  of  that  State  had  interpreted 
the  Act  as  providing  that  the  rates  of  charges  for  the  transportation  of  property  by  rail- 
roads, recommended  and  published  by  tlie  commission,  should  be  final  and  conclusive  as 
to  what  were  equal  and  reasonable  charges,  and  that  there  could  be  no  judicial  inquiry 
as  to  the  reasonableness  of  such  rates.  A  railroad  company,  in  answer  to  an  applica- 
tion for  a  mandamus,  contended  that  such  rates  in  regard  to  it  were  unreasonable,  and, 
as  it  was  not  allowed  by  the  State  Court  to  put  in  testimony  in  support  of  its  answer, 
on  the  question  of  the  reasonableness  of  such  rates,  this  court  held  that  the  statute 
was  in  conflict  with  the  Constitution  of  the  United  States,  as  depriving  the  company 
of  its  property  without  due  process  of  law,  and  depriving  it  of  the  equal  protection  of 
the  laws.  That  was  a  very  different  case  from  one  under  the  statute  of  New  York  in 
question  here,  for  in  this  instance  the  rate  of  charges  is  fixed  directly  by  the  legisla- 
ture. See  Spencer  v.  Merchant,  125  U.  S.  345,  356.  What  was  .said  in  the  opinion  of 
the  court  in  134  U.  S.  had  reference  only  to  the  case  then  before  the  court,  and  to 
charges  fixed  by  a  commission  appointed  under  an  Act  of  the  Legislature,  under  a  Con- 
stitution of  the  State  which  provided  tliat  all  corporations,  being  common  carriers, 
should  be  bound  to  carry  '  on  equal  and  reasonable  terms,'  and  under  a  statute  which 
provided  that  all  charges  made  by  a  common  carrier  for  the  transportation  of  passengers 
or  property  should  be  'equal  and  reasonable.' 

"  What  was  said  in  the  opinion  in  134  U.  S.,  as  to  the  question  of  the  reasonableness 
of  the  rate  of  charge  being  one  for  judicial  investigation,  had  no  reference  to  a  case 
where  the  rates  are  prescribed  directly  by  the  legislature.  Not  only  was  that  the  case 
in  the  statute  of  Illinois  in  Munn  v.  Illinois,  but  the  doctrine  was  laid  down  by  this 
court  in  Wabash,  ;?-c.  Railway  Co.  v.  Illinois,  118  U.  S.  557,  568,  that  it  was  the'right 
of  a  State  to  establish  limitations  upon  the  power  of  railroad  companies  to  fix  the 
price  at  which  they  would  carry  passengers  and  freight,  and  that  the  question  was  of 
the  same  character  as  that  involved  in  fixing  the  charges  to  be  made  by  persons  en- 
gaged in  the  warehousing  business.  So,  too,  in  Dow  v.  Beidclman,  125  U.  S.  680,  686, 
it  was  said  that  it  was  within  the  power  of  the  legislature  to  declare  what  should  be  a 
reasonable  compensation  for  the  services  of  persons  exercising  a  public  employment,  or 
to  fix  a  maximum  beyond  \yhich  any  charge  made  would  be  unreasonable. 

"But  in  Dow  v.  Beidelman,  after  citing  Munn  v.  Illinois,  94  U.  S.  113  [and  several 

1  Compare  Wellman  v.  Chic.  See  Ry.  Co.,  83  Mich.  592  (1890) ;  Clyde  et  al.  v.  Richm. 
Sr  D.  R.  R.  Co.,  57  Fed.  Rep.  436  (1893,  C.  C.  U.  S.  So.  Ca.). 


672  STATE  V.   VANDERSLUIS.  [CIIAP.  IV. 

other  cases],  as  recogniziug  tlie  doctrine  tliat  the  Icgishiture  may  itself  fix  a  maximum 
beyond  which  any  charge  made  would  be  unreasoualjle,  in  respect  to  services  reudered 
in  a  public  employment,  or  for  the  use  of  proj)erty  in  wiiich  tlie  public  has  an  interest, 
subject  to  the  proviso  that  such  power  of  limitation  or  regulation  is  not  without  limit, 
and  is  not  a  power  to  destroy,  or  a  power  to  compel  the  doing  of  the  services  without 
reward,  or  to  take  private  property  for  public  use  without  just  compensation  or  with- 
out due  process  of  law,  the  court  said  that  it  had  no  means,  '  if  it  would  under  any 
circumstances  have  tlic  power,'  of  determining  that  the  rate  fixed  by  the  legislature  in 
that  case  was  unreasonable,  and  that  it  did  not  ap]iear  that  there  had  been  any  such 
confiscation  of  property  as  amounted  to  a  taking  of  it  without  due  process  of  law,  or  tiiat 
there  had  been  any  denial  of  the  equal  protection  of  the  laws. 

"  In  the  cases  before  us,  tlie  records  do  not  show  that  tlie  charges  fixed  by  the  statute 
are  unreasonable,  or  that  property  has  been  taken  without  due  process  of  law,  or  that 
there  has  been  any  denial  of  the  equal  protection  of  the  laws;  even  if  under  any  cir- 
cumstances we  could  determine  that  the  maximum  rate  fixed  by  the  legislature  was 
unreasonable." 

Compare  A'.  B.  Co.  v.  Marijland,  21  Wall.  456,  471  (Bradley,  J.);  Spencer  v. 
Merchant,  ante,  at  p.  647 ;  Bradley,  J.  (dissenting),  in  Chicago,  c^c.  Rij.  Co.  v.  Min- 
nesota, ante,  at  p.  660,  note ;  and  Paulsen  v.  Portland,  149  U.  S.  30,  38. 

Of  that  [reasonableness],  said  the  court  (Waite,  C.  J.),  in  Terry  v.  Anderson,  95 
U.  S.  p.  633  (1877),  "the  legislature  is  primarily  the  judge;  and  we  cannot  over- 
rule the  decision  of  tliat  department  of  the  government,  unless  a  palpable  error 
has  been  committed."  See  Pickering  Phipps  v.  Land.  <j'  iV.  IF.  By.  Co.,  66  L.  T. 
Rep.  721. 

Compare  the  function  of  the  court  in  revising  the  verdict  of  a  jury  :  "  Not  merely 
must  the  jury's  verdict  be  conformable  to  the  rules  of  law,  but  it  must  be  defensible 
in  point  of  sense  and  reason  ;  it  must  not  be  absurd  or  whimsical.  Tliis  is  obviously 
a  different  thing  from  imposing  upon  the  jury  the  judge's  private  standard  of  what  is 
reasonable  ;  as,  for  example,  when  the  question  for  the  jury  itself  is  one  of  reasonable 
conduct.  In  such  a  case,  tiie  judges  do  not  undertake  to  set  aside  the  verdict  because 
their  own  opinion  of  what  is  reasonable  in  the  conduct  on  trial  differs  from  the  jury's. 
The  question  for  the  court,  it  will  be  observed,  is  not  whether  the  conduct  ultimately 
in  question,  e.  g.,  that  of  a  party  injured  in  a  railroad  accident,  was  reasonable,  but 
whether  the  jury's  conduct  is  reasonable  in  holding  it  to  be  so ;  and  the  test  is  whether 
a  reasonable  person  could,  upon  the  evidence,  entertain  the  jury's  opinion.  Can  the 
conduct,  whicli  the  jury  are  judging,  reasonably  be  thought  reasonable  ?  Is  that  a 
permissible  view  ?  "  —  Law  and  Fact  in  Jury  Trials,  A  Ilarv.  Law  Kev.  167,  168.  And 
so  further  Origin  and  Scope  of  Am.  Doct.  Const.  Law,  20-24. 

In  State  v.  Vandersluis,  42  Minn.  129,  131  (1889),  the  court  (Gilfillan,  C.  J.) 
said :  "  The  only  limit  to  the  legislative  power  in  prescribing  conditions  to  the  right 
to  practise  in  a  profession  is  that  they  shall  be  reasonable.  Whether  they  are  reason- 
able, —  that  is,  whether  the  legislature  has  gone  beyond  the  proper  limits  of  its  power,  — 
the  courts  must  judge.  By  the  term  '  reasonnble '  we  do  not  mean  exjieilient.  no.r.do 
we  mean  that  the  conditions  must  be  such  as  the  court  would  impose  if  it  were  called 
c  /tx-Zv^ "  on  to  prescribe  what  should  be  the  conditions.  They  are  to  be  deemed  reasonable 
__  in  'tu4  where,  although  perhaps  not  the  wisest  and  l)e.stthat  might  be  adopted,  tliev  are  fit  and 

•■  Irtic^A    appropriate  to  the  end  in  view,  to  wit,  the  protection  of  the  public,  and  are  manifestly 
f^  Oy^-     ^^topt-ed  in  good  faith  for  that  purpose.     If  a  conditici^njjhould  l)e_clear]y  arbitrary  and 
capricious  ;  if  no  reason  with  reference  toThe  end  in  view  could  bo  assigned  for  it; 
<-c<<  If*^      and,  especialTyTif  \t  appea'red  tTTat  it  must  have  lieen  ndoiited  "for  some  other  |)urr)ose.^^ 
r     Ji/t^.^^such,  for  instance,  as  to  favor  or  benefit  some  ]iei^sons  or  class  oTTiorsons.  —  it  certamlv 
{X.^c/-yAMAA.^  ^P^j  j  P^^  Ijg  reasonable,  and  would  be  beyond  the  power  of  the  legislature  to  impose." 

i(iA<  ^i^  -    I*  '"''•y  ^^  doubted  that  there  is  any  difference  between  the  action  of  a  legislature 
jif^  ,    and  that  of  a  legi.slative  commission,  as  regards  the  questions  involved  in  such  a  case 
^■^'^  '    as  Chic,  ^~c.  Ry.  Co.  v.  Minnesota,  when  once  it  is  clear  that  the  legislature  has  really     , 


1^  /uLOyO'*^ 


A^iJv^LA. 


CHAP.  IV.] 


EILENBECKEU   V.   PLYMOUTH    COL'NTY. 


673 


.^J^, 


EILENBECKER   v.    PLYMOUTH   COUNT Y.\ 


-^-^^ 


1890.    '^oooOL^    v«.4_e?x.pu» 


Supreme  Court  of  the  United  States. 

[134  U.  5.31.] 

The  case  is  stated  in  tl\e  opinion. 

3f/\  William  A.  McKenney^  for  plaintiffs  in  error 

Mr.  J.  S.  Struhle,  31)-.  S.  M.  3Iarsh,  and  3Ir.  A.  J.  Baker,  Attorney- 
General  of  Iowa,  for  defendant  in  error. 

Mr..  Justice  Miller  delivered  tlie  opinion  of  tlie  court. 

This  is  a  writ  of  error  to  tiie  Snijrenie  Court  of  the  State  of  Iowa. 

The  judgment  wliich  we  are  called  upon  to  review  is  one  affirming 
the  judgment  of  the  District  Court  of  Plymouth  County  in  that  State. 
T h i-s  judgment  imposed  a  fine  of  five  luuulreil  dollars  and  costs  on  eac h 
of  the  six  plaintiffs  in  error  in  this  case,  and  imprisonment  in  the  j.iil 
of  Plvmouth  County  for  a  period  of  three  months,  but  they  were  to  be 


^ 


undertaken  to  confer  upon  the  commission  the  power  in  question.     If  the  legislature 
can  exercise  it,  it  would  seem  that  it  may  confer  on  the  commission  a  liice  authority. 

Yet,  as  regards  subordinate  bodies,  there  is  always  the  question  of  construction,  as  %  ij/t*  -A^ 
to  what  authority  has,  in  fact,  been  conferred  on  them  ;  and  in  passing  on  this,  estab- 
lished common-law  principles  are  applicable, wliich,  ordinarily,  aiul  in  the  absence  of  clear 
legislative  intention  to  the  contrary,  enable  the  courts  to  control  their  action  much  more 
readily  than  that  of  the  legislature  itself.  If  a  commission  or  a  local  board  acts  un- 
reasonably, the  courts  may  set  aside  their  action  as  not  authorized  by  the  legislature. 
Similar  action  by  the  legislature  itself  can  be  condemned  only  if  it  be  unconstitutional. 

In  Leader  v.  Moxon  et  «/.,  2  W.  Bl.  924,  where  paving  commissioners,  with  general 
powers  "  to  pave,  repair,  sink,  or  alter  [a  certain  street]  in  such  manner  as  the  com- 
missioners shall  think  fit,"  proceeded  to  raise  "  the  footway  contiguous  to  the  plaintiff's 
houses  to  the  height  of  six  feet,  but  in  a  regular  descent  from  one  end  of  the  street  to 
the  other,  .  .  .  whereby  the  doors  and  windows  of  the  ground-floors  of  the  said  houses 
were  totally  obstructed,"  — it  was  held,  that  "  the  commissioners  had  grossly  exceeded 
their  powers,  which  must  have  a  reasonable  construction.  Their  discretion  is  not  arbi- 
trary, but  must  be  limited  by  reason  and  law.  .  .  .  Had  Parliament  intended  to  demolish 
or  render  useless  some  houses  for  the  benefit  or  ornament  of  the  rest,  it  would  have  given 
express  powers  for  that  purpose  and  given  an  equivalent  for  the  loss  that  individuals 
might  have  sustained  therel)y." 

In  Sharp  v.  Wakefield  [1891]  Appeal  Cases,  173,  179,  Lord  Chancellor  Hals- 
bury,  in  speaking  of  the  authority  of  licensing  iustices  in  regard  to  the  sale  of 
intoxicating  liquors,  said  :  "  An  extensive  power  is  confided  to  the  justices  in  their 
capacity  as  justices,  to  be  exercised  judicially  ;  and  '  discretion  '  means,  when  it  is  said 
that  something  is  to  be  done  within  the  discretion  of  the  authorities,  that  something 
is  to  be  done  according  to  the  rules  of  reason  and  Jiistice,  not  acconling  to  private 
opTnign.  /{poke's  Case,  5  Rep.  100  a ,-  according  to  law,  and  not  humor.  It  is  to  be  not 
arbitrary,  vague,  and  fanciful,  but  legal  and  regular.  And  it  mast  lie  exercised  within 
the  limit  to  which  an  honest  man  comjjetent  to  the  discharge  of  his  office  ought  to 
confine  himself.      Wilson  v.  Rastall,  4  T.  R.  at  p.  757."      7  c£ '  ^'  "i6"3 

As  to  the  general  question  of  the  legislative  power  over  railroads,  see  also  Ch.,  B.  Sf 
Q.  R.  R.  Co.v.  Iowa,  94  U.  S.  155  (1876),  and  A'.  R  Com.  C'uies,  116  U.  S.  307  (1885). 
—  Ed. 

VOL.  I.  — 43  /I  • 


^r^- 


Co  uU  u 


^.^^  Lh.-vu  u..^  4.  v^^uxcU^xxiA^s  ni!^->-  -^r^ 


/:x.    ix^v^t/Wtfv^ 


674 


EILENBECKER   V.    PLYMOUTH    COUNTY.  [CIIAP.  IV. 


released  from  confinement  if  the  fine  imposed  was  paid  within  tbirt}^ 
days  from  the  date  of  tlie  juduinent. 

This  sentence  was  uronounccd  by  the  court  as  a  punishment  for 
contempt  in  refusin<j:  to  obey  a  writ  of  injunction  issued  by  that  cou r t , 
enjoining   and   restraining   each   of  the   defendants    from    selling,   or 


kecpincr  for  sale,  any  intoxicating  licjuors,  including  ale,  wine  and 
beer,  in  Plymouth  County,  and  the  sentence  was  imposed  upon  a 
hearing  by  the  court,  without  a  jury,  and  upon  evidence  in  the  form  of 
aflidavits. 

It  appears  that  on  the  11th  da}-  of  June,  1885,  separate  petitions  in 
equit\'  were  filed  in  the  District  Court  of  Plymouth  Count}'  against  each 
of  these  plaintitfs  in  error,  praying  that  they  should  be  enjoined  from 

/Liry^vt/^^^^  selling,  or  keeping  for  sale,  intoxicating  liquors,  including  ale,  wine  and 
^         beer,  in  that  county.     On  the  6th  of  Jul}-  the  court  ordered  the  issue  of 

\f^'^  '  '         prelimiuar}'  injunctions  as  prayed.     On  the  7th  of  July  the  writs  were 

4.Mn«,  served  on  each  of  the  defendants  in  each  proceeding  b}*  the  sheriff  of 

.  Plymouth  Count}'.      On  the  24th  of  October   complaints  were   filed, 

K-<-'>^.'VM.^u/t"  alleging  that  these  plaintiffs  in  ei-ror  had  violated  this  injunction  by 
selling  intoxicating  liquors  contrary  to  the  law  and  the  terms  of  the 
injunction  served  on  them,  and  asking  that  they  be  required  to  show 
cause  why  they  should  not  be  punished  for  contempt  of  court.     A  rule 

j^jj_^  tt-si.     ^^^  granted  accordingly,  and  the  court,  having  no  personal  knowledge 
M  of  the  facts  charged,  ordered  that  a  hearing  be  had  at  the  next  term  of 

^-•■^•^■^^■^^^•'~*^  the  court,  upon  affidavits  ;  and  on  the  8th  day  of  March,  1886,  it  being 

^^_^_^_^j^;V^  at  the  regular  term  of  said  District  Court,  separate  trials  were  had 
upon  evidence  in  the  form  of  affidavits,  by  the  court  without  a  jury, 
upon  which  the  plaintiffs  were  found  guilty  of  a  violation  of  the  writs 
of  injunction  issued  in  said  cause,  and  a  sentence  of  fine  and  imprison- 
ment, as  already  stated,  entered  against  them. 

Each  plaintiff  obtained  from  the  Supreme  Court  of  the  State  of  Iowa, 
upon  petition,  a  writ  of  certiorari,  in  which  it  was  alleged  that  the  Dis- 
trict Court  of  Plymouth  County  had  acted  without  jurisdiction  and 
illegally  in  rendering  this  judgment,  and  by  agreement  of  counsel,  and 
with  the  consent  of  the  Supreme  Court  of  Iowa,  tlie  cases  of  the  six 
appellants  in  this  court  were  submitted  together  and  tried  on  one  tran- 
script of  record.  That  court  affirmed  the  judgment  of  the  District 
Court  of  Plymouth  County,  and  to  that  judgment  of  affirmance  this  writ 
of  error   is    prosecuted.   .   .   .   [Four   assignments   of  error   are    here 


l-yv»-Ca/va^ 


c^M^ 


/    *     .     stated. 1 
^  /i>-^    i     The  fir 


jo<^^ 


JijUi/'^ 


•4 


(X^^f^ 


ok- 


st  three  of  these  assignments  of  error,  as  we  have  stated 
them,  being  the  first  and  second  and  fourth  of  the  assignments  as  num- 
bered in  the  brief  of  the  plaintiffs  in  error,  are  disposed  of  at  once  by 
the  principle  often  decided  by  this  court,  that  the  first  eight  articles  of 
the  amendments  to  the  Constitution  luivej;eferciice  to  powers  exercised 
\by  the  government  of  the  TJnited  -SiaJaa  and  not  to  those  of  the  States. 
Livingston  v.  Moore,  7  Pet.  469  ;  The  Justices  v.  Murray^  9  Wall. 
274;    Edwards   v.   Elliott,  21  Wall.  532;    United  States   v.    Cruik- 


CHAP.  IV.]  EILEXBECKER  V.   rLY.MOUTH   COUNTY.  675        -       .         ^^ 

shank,  92  U.  S.  542  ;    Walker  v.  Saicoinet,  92  U.  S.  90 ;  Fox  v.  Ohio,     ^K'^ 

5  How.  410  ;  Holmes  v.  Jeiutison,  14  Pet.  540  ;  Presser  v.  Illinois,     r^$-bui^(*^  ^. 

IIG  U.  S.  252.  .   .   .  X«-c*A^ 

This  leaves  us  alone  the  assignment  of  error  that  the  Supreme  Court    -'^ 
of  Iowa  disregarded  the  provisions  of  section  1  of  Article  XIV.  of  the     f^    o<  cL\.y<^^ 

amendments  to  the  Constitution  of  the  United  States,  because  it  upheld       ^      .  , 

the  statute  of  Iowa/  whicli  it  is  supposed  by  counsel  deprives  persons    t7t<i**-tr-iA  "-X) 
charged  with  selling  intoxicating  liquors  of  the  equal  protection  of  the    4  <  LrcY^v^^,,*^^*^ 
law,  abridges  their  rights  and  privileges,  and  denies  to  them  the  right     /      ^^^Z^^^t^,^,^ 
of  trial  by  jur}',  while  in  all  other  criminal  prosecutions  the  accused        g        <J 
must  be  presented  b}'  indictment,  and  then  have  the  benefit  of  trial  by  -TZVm    • 
a  jury  of  his  peers. 

The  first  observation  to  be  made  on  this  subject  is,  that  the  plaintiffs 
in  error  are  seeking  to  reverse  a  judgment  of  the  District  Court  of 
Plymouth  County,  Iowa,  imposing  upon  them  a  fine  and  imprisonment 
for  violating  the  injunction  of  that  court,  which  had  been  regularly 
issued  and  served  upon  them.  Of  the  intentional  violation  of  this 
injunction  by  plaintiffs  we  are  not  permitted  to  entertain  an}-  doubt,  and, 
if  we  did,  the  record  in  the  case  makes  it  plain.  Neither  is  it  doubted 
that  they  had  a  regular  and  fair  trial,  after  due  notice,  and  opportunity 
to  defend  themselves  in  open  court  at  a  regular  term  thereof. 

The  contention  of  these  parties  is,  that  they  were  entitled  to  a  trial 
by  jury  on  the  question  as  to  whether  they  were  guilty  or  not  guilty  of 
the  contempt  charged  upon  them,  and  because  they  did  not  have  this 
trial  by  jury  they  say  that  they  were  dei^rived  of  their  liberty  without 
due  process  of  law  within  the  meaning  of  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States . 

If  it  has  ever  been  understood  that  proceedings  according  to  the 
common  law  for  contempt  of  court  have  been  subject  to  the  right  of 
trial  by  jury,  we  have  been  unable  to  find  any  instance  of  it.     It  has 

1  Section  1.543  of  the  Code  of  Iowa,  as  amended  by  c.  143  of  the  Acts  of  the  Twen-  ys      (^  ^.  {^a 

tieth  General  Assembly,  is  as  follows  :  f  ' 

Sec.  1543.     In  case  of  violation  of  the  provisions  of  either  of  the  three  preceding  w^ay>  ^tMA."^ 

sedians  or  of  section  fifteen  hundred  and  twenty-five  of  this  chapter,  the  building  or  c\       /   *i          * 

erection  of  whatever  kind,  or  the  ground  itself  in  or  upon  which  such  unlawful  manu-  «=<^t-  \  ^"^  ^ 

facture,  or  sale,  or  keeping,  with  intent  to  sell,  use  or  give  away,  of  any  intoxicating  ^  ^   ^  y  ja^\a 

liquors,  is  carried  on  or  continued  or  exists,  and  the  furniture,  fixture,  vessels  and  vvo-^        ^  ^ 


contents,  is  hereby  declared  a/nuisance) and  shall  be^abated7as  hereinafter  provided,  "XJUjl    f^iiX->-^ 
and  whoever  shall  erect  or  estaldish.  or  continue,  or  use  any  i)uilding,  erection  or  place 


for  any  of  the  purposes  prohibited  in  said  sections,  shall  be(^eemed  guilty  of  a  nuisance,> 

and  may  be  prosecuted  and  punished  accordingly,  and  upon  conviction,(^hall  pay  a  fine/    yvv  \jJI<j-^^ 

of  not  exceeding  one  thousand  dollars  and  costs  of  prosecution,  and  stand  committed 

until  the  fine  and  costs  are  paid  ;  and  the  provisions  of  chapter  47,  title  25  of  this 

Code,  shall  not  be  applicable  to  persons  committed  under  this  section.     Any  citizen  of     tvo^   cUjcAC 

the  county  where  such  nuisance  exists,  or  is   kept  or  maintained,  may  maintain  an 

action  in  equity,  to  abate  and  perpetually  onjuin  tlu"  sami',  aii^i  any  p; avn  \  itihiting     t«  vC  fX.  <vua4^ 

the  terms  of  any  iniunction  granted  in  such  prnccrMliii'j;  shall  \><'  iniiiislitMl  as  for  con-  .  Qu>^.„^ji_j^   ,fj^ 

tempt,  by  fine  of  not  less  than  five  hundred  nor  more  than  one  thousand  dollars  or  by  / 

imprisonment  in  the  county  jail  not  more  than  six  months,  or  l)y  both  sucli  fine  and      (L-^f^Xii^  ^  c^ 

imprisonment  in  the  discretion  of  the  court. 


676  EILKNBliCKKU   V.    PLYMOUTH   COUNTY.  [CIIAP.  IV. 

alwgj-s  been  one  of  the  attributes  —  one  of  the  powers  necessanh- 
incklent  to  a  court  ofjnstjee  — that  it  should  have  this  power  of  vindi- 
cating its  cligintv,  of  enforcing  its  orders,  of  protectmg^  itself  from 
insult  without  the  necessity  of  callino^  uix>n  a  jury  to  assist  it  in  the 
exercise  of  this  power. 

In  the  case  in  this  court  of  ^xj^arts_2jS221!/,  128  U.  S.  289,  this  doc- 
trine is  fully  asserted  and  enforced  ;  quoting  the  language  of  the  court 
in  tlie  case  of  Anderson  v.  DiDin,  6  Wlieat.  204,  227,  where  it  was  said 
tiiat  "  courts  of  justice  are  universally  acknowledged  to  be  vested,  b}* 
their  ver}'  creation,  with  power  to  impose  silence,  respect  and  decorum 
in  their  presence,  and  submission  to  their  lawful  mandates ;  "  citing 
also  with  approbation  the  language  of  the  Supreme  Judicial  Court  of 
Massachusetts  in  CartwrlgMs  Case,  lU  Mass.  230,  238.  that  "the 
summary  power  to  commit  and  punisli  for  contera[)ts  tending  to  obstruct 
or  degrade  the  administration  of  justice  is  inherent  in  courts  of  chan- 
cer}' and  other  superior  courts,  as  essential  to  the  execution  of  their 
powers  and  to  the  maintenance  of  their  authority,  and  is  part  of  the 
law  of  the  land,  within  the  meaning  of  Magna  Charta  and  of  the 
twelfth  article  of  our  Declaration  of  Rights." 

,  And  this  court,  in  Terr\''s  case,  held  that  a  summary-  proceeding  of 
'  the  Circuit  Court  of  the  United  States  without  a  jur}-,  imposing  upon 
Terry  imprisonment  for  the  term  of  six  months,  was  a  vahd  exercise  of 
the  powers  of  the  court,  and  that  the  action  of  the  Circuit  Court  was 
^also  without  error  in  refusing  to  grant  him  a  writ  of  habeas  corpus. 
The  case  of  Terr}'  came  into  this  court  upon  apj)lication  for  a  writ  of 
habeas  corpus,  and  presented,  as  the  case  now  before  us  does,  the 
question  of  the  authority  of  the  Circuit  Court  to  impose  this  imprison- 
ment on  a  summary  hearing  without  those  regular  proceedings  which 
include  a  trial  by  jury  —  which  was  affirmed.  The  still  more  recent 
cases  of  JEJx  parte  Savin,  131  U.  S.  267,  and  £J,c  parte  Cuddy,  131 
U.  S.  280,  assei't  very  strong!}-  the  same  principle.  In  Ex  parte 
Hobinson,  19  Wall.  505,  510,  this  court  speaks  in  the  following 
language : 

"The  power  to  punish  for  contempts  is  inherent  in  all  courts.  Its 
existence  is  essential  to  the  preservation  of  order  in  judicial  proceed- 
ings, and  the  enforcement  of  the  judgments,  orders  and  writs  of  the 
courts,  and  consequently  to  the  due  administration  of  justice.  The 
moment  the  courts  of  the  United  States  were  called  into  existence  and 
invested  with  jurisdiction  over  any  subject,  they  became  possessed  of 
tliis  power.  But  the  poAver  has  been  limited  and  defined  by  the  Act 
of  Congress  of  March  2d,  1831.     4  Stat.  487." 

The  statute,  now  embodied  in  §  725  of  the  Revised  Statutes,  reads  as 
follows:  "The  power  of  the  several  courts  of  the  United  States  to 
issue  attachments  and  inflict  summary  punishments  for  contempts  of 
court  shall  not  be  construed  to  extend  to  any  cases  except  the  misbe- 
havior of  any  person  or  persons  in  the  presence  of  the  said  courts  or 
so  near  thereto  as  to  obstruct  the  administration  of  justice,  the  mis- 


CHAP.  IV.]  EILENBECKEE   V.   PLYMOUTH   COUNTY.  G77 

behavior  of  any  of  the  officers  of  the  said  courts  in  their  oflicial 
transactions,  and  the  <li3obedieace  or  resistance  by  an}'  officer  of  the 
said  courts,  part}',  juror,  witness,  or  any  other  person  or  persons  to 
any  lawful  writ,  process,  order,  rule,  decree,  or  command  of  tlie  said 
courts." 

It  will  thus  be  seen  that  even  in  the  Act  of  Clongress,  intended  to 
limit  the  power  of  the  courts  to  punish  for  contempts  of  its  authori ty 
b\'  summary  proceedings,  there  is  expressly  left  the  power  to  punish 
in  this  summary  manner  the  disobedience  of  any  party,  to  any  lawfu  1 
writ,  process,  order,  rule,  decree  or  command  of  said  court.  This 
statute  was  only  designed  for  tlie  government  of  the  courts  of  the 
United  States,  and  the  opinions  of  this  court  in  the  cases  we  have 
already  referred  to  show  conclusively  v/iiat  was  the  nature  and  extent 
of  the  power  niherent  in  the  courts  of  the  States  by  virtue  of  their 
organization,  and  that  the  punishments  which  they  were  authorized  to 
inflict  for  a  disobedience  to  their  writs  and  orders  were  ample  and  sum- 
mary, and  did  not  require  the  interposition  of  a  jury  to  find  the  facts  or 
assess  the  punishment.  This,  then,  is  due  process  of  law  in  regard  to 
contempts  of  courts  ;  was  due  ])rocess  of  law  at  the  time  tlie  .b'our- 
teenth  Amendment  of  the  Federal  Constitution  was  adopted ;  and 
nothing  has  ever  changed  it  except  such  statutes  as  Congress  may 
have  enacted  for  the  courts  of  the  United  States,  and  as  each  State 
ma}'  have  enacted  for  the  government  of  its  own  courts. 

So  far  from  any  statute  on  this  subject  limiting  the  power  of  the 
courts  of  Iowa,  the  Act  of  the  Legislature  of  that  State,  authorizing 
the  injunction  which  these  parties  are  charged  with  violating,  expressly 
declares  that  for  violating  such  injunction  a  person  doing  so  shall  be 
punished  for  the  contempt  by  a  fine  of  not  less  than  live  hundred  or 
more  than  a  thousand  dollars,  or  by  imprisonment  in  the  county  jail 
not  more  than  six  months,  or  by  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court.  So  that  the  proceeding  by  which  the  fine 
and  imprisonment  imposed  upon  these  parties  for  contempt  in  violating 
the  injunction  of  the  court,  regularly  issued  in  a  suit  to  which  they  were 
parties,  is  due  process  of  law,  and  always  has  been  due  process  of  law, 
and  is  the  process  or  proceeding  by  which  courts  have  from  time  im- 
memorial enforced  the  execution  of  their  orders  and  decrees,  and  cannot 
be  said  to  deprive  the  parties  of  their  liberty  or  property  without  due 
process  of  law. 
I  The  counsel  for  plaintiffs  in  error  seek  to  evade  the  force  of  this 

k  ^  reasoning  by  the  proposition  that  the  entire  statute  under  which  "this 
/  '>  injunction  was  issued  is  in  the  nature  of  a  criminal  proceeding,  and 
^  v;^''^  that  the  contempt  of  court  of  which  these  parties  have  been  found 
ij'  ^  guilty  is  a  crime  for  the  punishment  of  which  they  have  a  right  to  trial 
>    .n"^    by  jury. 

•  oJ  j?'  We  cannot  accede  to  this  view  of  the  subject.  "Whether  an  attach- 
jT  '^  ment  for  a  contempt  of  court,  and  the  judgment  of  the  court  punishing 
■  1^,  . '  the  party  for  such  contempt,  is  in  itself  essentially  a  criminal  proce^- 


/'XA 


678  EILENBECKER   V.    PLYMOUTH   COUNTY.  [CIIAP.  IV. 

\n<y  or  not,  we  do  not  find  it  necessary  to  decide.  We  simply  hold  that, 
wli.it.ever  its  nature  may  be.  it  is  an  offence  against  the  court  and 
againstj,he  administration  of  jiistice,  for  which  courts  have  always  had 
tUt'A'i^ht  to  punish  the  party  by  suunnar}'  proceeding-  and  without  trial 
by  ju^ry  ;  and  that  in  that  sense  it  is  due  process  of  law  within  the 
meaning  of  the  Fourteenth  Amendment  of  the  Constitution.  We  do 
not  suppose  that  that  provision  of  the  Constitution  was  ever  intended  to 
interiere  with  or  abolish  the  powers  of  the  courts  in  proceedings  for 
contempt,  whether  this  contempt  occurred  in  the  course  of  a  criminal 
proceeding  or  of  a  civil  suit. 

^  We  miglit  rest  the  case  here  ;  but  the  plaintiffs  in  error  fall  back 
upon  the  proposition  that  the  statute  of  the  Iowa  Legislature  concern- 
ing tlie  sale  of  liquors,  under  which  this  injunction  was  issued,  is  itsTTf 
void,  as  deiM'iving  the  parties  of  their  property  and  of  their  liberty 
without  due  process  of  law.  We  are  not  prepared  to  say  that  this 
question  arises  in  the  present  case.  The  principal  suit  in  which  the 
injunction  was  issued,  for  the  contempt  of  which  these  parties  have 
been  sentenced  to  imprisonment  and  to  pay  a  fine,  has  never  been  tried 
so  far  as  this  record  shows.  We  do  not  know  whether  the  parties 
demanded  a  trial  by  jury  on  the  question  of  their  guilt}'  violation  of  that 
statute.  We  do  not  know  that  thev  w^ould  have  been  refused  a  trial  by 
jurj'  if  they  had  demanded  it.  Until  the  trial  of  that  case  has  been  had 
they  are  not  injured  by  a  refusal  to  grant  them  a  jury  trial.  It  is  the 
well-settled  doctrine  of  this  court  that  a  part  of  a  statute  may  be  void 
and  the  remainder  may  be  valid.  That  part  of  this  statute  which 
declares  that  no  person  shall  own  or  keep,  or  be  in  any  wa}'  con- 
cerned, engaged  or  employed  in  owning  or  keeping  any  intoxicating 
liquors  with  intent  to  sell  the  same  within  this  State,  and  all  the  pro- 
hibitory clauses  of  the  statute,  have  been  held  by  this  court  to  be 
within  the  constitutional  powers  of  the  State  Legislature,  in  the  cases 
of  Mugler  v.  Kansas,  123  U.  S.  623,  and  Powell  v.  Pennsylvania, 
127  U.  S.  678. 

If  the  objection  to  the  statute  is  that  it  authorizes  a  proceeding  in 
the  nature  of  a  suit  in  equity  to  suppress  the  manufacture  and  sale  of 
intoxicating  liquors  which  are  by  law  prohibited,  and  to  abate  the 
nuisance  which  the  statute  declares  such  acts  to  be,  wherever  carried 
on,  we  respond  that,  so  far  as  at  present  advised,  it  appears  to  us  that 
all  the  powers  of  a  court,  whether  at  common  law  or  in  chancery,  may 
be  called  into  operation  by  a  legislative  body  for  the  purpose  of  sup- 
pressing this  objectionable  traffic ;  and  we  know  of  no  hindrance  in  the 
Constitution  of  the  United  States  to  the  form  of  proceedings,  or  to  the 
court  in  which  this  remedy  shall  be  had.  Certainly  it  seems  to  us  to 
be  quite  as  wise  to  use  the  processes  of  the  law  and  the  powers  of  tlie 
court  to  prevent  the  evil,  as  to  punish  the  offence  as  a  crime  after  it  has 
been  committed. 

We  think  it  was  within  the  power  of  the  court  of  Plymouth  County 
to  issue  the  writs  of  injunction  in  these  cases,  and  that  the  disobedience 


CHAP.  IV.]  CAKLETON  V.   RUGG.  G79 

to  til  cm  by  the  plai  ri  tiff  s  in  error  subjected  them  to  the  proceedings  for 
contempt  which,  were  had  before  that  court. 
The  judgment  of  the  Supreme  Court  of  Iowa  is 

Afirmed. 

In  Carleton  v.  Bugg,  149  Mass.  550  (1889),  on  a  petition  in  equity,  ^,            ^ 
for  the  abatement  of  a  nuisance,  and  an  injunction  restraining  the  con- 
tinuance of  it,  the  court  (Knowlton,  J.)  said:  '*The  St.  of  1887,  c.  ^^M/ia-^ 
380,  §   1,  is  as  follows:   'The  Supreme  Judicial  Court  and  Superior  AuAAyi.rd4~^ 
Court  shall  have  jurisdiction  in  equity  upon  information  filed  by  the  o 
district  attorney  for  the  flistrict.  or  upon  the  petition  of  not  less  tlian  '^-^^    ^^^^ 
ten  leg.al  voters  of  any  town  or  city,  setting  forth  the  fact  that  any  -^  /i^^a^t^c 
building,  place,   or  tenement  therein  is  resorted* to  for  prostitution,  -^j^-^Jji^ 
lewdness,  or  illegal  gaming,  or  is  used  for  the  illegal  kocpiug  or_J£'']e  .  , 
of  intoxicating  liquors,  to  restrain,    enjoin,   or  abate  the  h,auie  as  _a  -l^-m,-^^*-^-^ 
common  nuisance,  and  an  injunction  for  such  purpose  may  be  issued  o^^  ck  <L4n 
by  any  justice  of  either  of  said  courts.'  .-y-iiAAiu^^^ 

"  The  first  question  reported  for  our  decision  is,  whether  this  statute  ,_          y 

is  constitutional.     The  respondents  contend  that  it  is  in  conflict  with  cT 

Article  XII.  of  the  Declaration    of  Rights,  which  provides  that  '  no  <r>  ^>-  --c^- 

subject  shall  be  arrested,   imprisoned,  despoiled,  or   deprived  of  his  ^<;i,,^ito<'  "^ 

property,  immunities,  or  privileges,    ...  but  by  the  judgment  of  his  A/^/iZ«^ 

peers,  or  the  law  of  the  land.'  ...  '     LA^t-a^ 

"We  do  not  understand  the  respondents  to  contend  that  the  provi-  /J_y^^ 

sions  of  the  Pub.  Sts.,  c.  100,  which  regulate  the  sale  of  intoxicating  ul^Y^  ^ 

liquors,  or  those  of  the  Pub.  Sts.,  c.  101,  §  6,  which  declare  that  '  all  y  .Iaji^ 

buildings,   places,  or  tenements  .  .  .  used  for  the  illegal  keeping  or  0 

sale  of  intoxicating   liquor  shall  be  deemed  common  nuisances,'  are  -"^^T^^-vH  '^^^ 

unconstitutional.     But  the  argument  is.  that  by  a  process  in  equity  ,,i.^>^^-j^<^y^^^ 

for  the  abatement  of  an  alleged  common  nuisance  of  the  kind  named  ^.  j:f^  4)^ 

in  this  statute,  they  are  liable  to  be  deprived  of  their  property,  immu-  (j 

nities.  and  privileges  otherwise  than  by  the  judgment  of  their  peers  or  0<aa^   '^'^  ■ 

the  law  of  the  land.  A^JtiXMA^ 

''  The  fallacy  of  the  argument  lies  in  part  in  disregarding  the  distinc-  ^  g  xro^dnA 
/jHion  between  a  proceeding  to  abate  a  nuisance,  which  looks  only  to  the  ^^ 
^  property  that  in  the  use  made  of  it  constitutes  the  nuisance,  and  a  pro- 
ceeding to  punish  an  offender  for  the  crime  of  maintaining  a  nuisance.  C^niyvtiAX 
These  two  proceedings  are  entirely  unlike.     The  latter  is  conducted  -oA.  . 
under   the   provisions  of  the   criminal  law,  and  deals  only  with  the  ^  /It^  (K 
person   who  has  violated  the   law.     The  former  is  governed  by  the 
rules  which  relate  to  property,  and  its  only  connection  with  persons  is  ^^>'^-^>--e-*^ 
through  property  in   which  they  may  be  interested.     That   which  is  jp^  A^,<^n^ 
/     'declared  bv  a  valid  statute  to  be  a  nuisance,  is  deemed~in  law  to  ^  / 
ly   a  nuisance  in  fact,  and  should  be  dealt  with  as  sucE     The  peo|STe',  I' 
'y\^     speaking  through  their  representatives,  have  proclaimed  it  to  be  offen-  '{rWt     -  j, 
J    jp       sive  and  injurious  to  the  public,  and  the  law  will  not  tolerate  it.     The  ,    X^ 
1;     nJ*    fact  that  keeping  a  nuisance  is  a  crime,  does  not  deprive  a  court  of  , 


I  680  CAKLETON   I?.   KUGG.  [CHAP.  IV. 

i/woL  equity  of  the  power  to  abate  the  nuisance.  Attorney-General  v. 
Hunter,  1  Dev.  Ecj.  12.  J^eople  v.  -S^  Louis,  5  Gihnuu,  351.  ^i^eM 
V.  Grecnicoodi  2G  Iowa,  377.     Mtnke  v.  Ilopemcoi,  87  111.  450.  .  .  . 

••  It  should  be  borne  in  mind,  that  this  is  not  a  statute  which  professes 
to  look  to  the  conduct  of  persons  to  prevent  the  counuission  of  crime. 
If  it  were,  it  would  have  no  legitimate  place  in  our  jurisprudence. 
There  is  no  doubt  that  in  hearings  upon  applications  for  preliminary 
injunctions  and  orders  2yendente  lite  in  suits  in  equity,  and  in  proceed- 
ings for  the  punishment  of  contempt  of  court,  the  parties  have  no 
constitutional  right  to  a  trial  by  jury.  It  would  be  an  anomalous  pro- 
ceeding for  a  court  to  enjoin  a  defendant  from  committing  the  crime 
of  larcen}-,  or  of  selling  intoxicating  liquors,  with  a  view  to  punish  as 
disobedience  of  the 'injunction  and  contempt  of  court  the  same  act 
which  was  before  punishable  as  a  crime.  If  that  could  be  done,  an 
accused  person  through  a  mere  change  of  form  in  the  proceedings 
might  be  punished  for  a  crime  without  a  trial  bj-  jury,  and  in  violation 
of  both  the  Federal  and  State  constitutions.  There  would  be  strong 
ground  for  contending  that  a  statute  which  should  attempt  to  authorize 
such  a  method  of  preventing  or  punishing  ordinary  crimes  would  be 
unconstitutional.  Indeed,  even  where  a  plaintiff  seeks  the  aid  of  a 
court  of  equit}-  to  protect  him  from  irreparable  injur}-  through  the 
threatened  publication  of  a  libel,  or  the  commission  of  some  other  like 
crime,  the  courts  decline  to  interfere.  Brandreth  v.  Lance,  8  Paige, 
24 ;  Fleming  v.  Neioton,  1  H.  L.  Cas.  363,  376  ;  Boston  Biatite  Co. 
v.  Florence  Manuf.  Co.,  114  Mass.  69."  .  .  . 

Lijunction  to  issue.^ 

1  And  so  State  v.  Saunders,  25  Atl.  Rep.  588  (N.  H.  December,  1889).  UJ.  d* 

lu  Carleton  v.  Rii(/g,  Field,  J.,  gave  a  dissenting  opiuiou  iu  the  course  of  which  he      ^    vX.cC 
/       said;  "  The  phrase  '  due  process  of  law,'  coutaiucd  in  the  Fourteeuth  Amendment  of     ^.^"^ — 
'^^>C*MM^^    the  Constitution  of  the  United  States,  has  not  been  construed  to  mean  that  parties  shall 
be  entitled  to  a  jury  trial  in  civil  suits  at  common  law,  or  that  a  person  shall  Ije  tried 
'-'*-*'<>-</vt         for  a  felony  or  a  capital  crime  only  on  presentment  of  a  grand  jurvj  and  it  is  doubtful, 
*/V         even,  if  it  would  be  held  tliat  the  amendment  secures  a  trial  by  jury  in  criminal  cases. 

t'*  The  'clan.se  of  that  amendment  we  are  considering  is  a  restraint  on  all  the  States  of 

-jf--  the  United  States,  and  the  Supreme  Court  of  the  United  States  has  taken  notice  that 
CkAA.  ^^  there  are  considerable  diversities  in  the  jurisprudence  of  the  different  States.  .  .  . 
XJ:     U  Apppr^ntlv  RTiv  mode  of  procedure  dulv  established  by  a  State,  which  provides  for  an 

I      .  impartial  trial,  and  does   not  vi(date   tlie   fun(!aniPntal_jjrmdjjl^s_ol.^neral,  juriS; 

xvC/>^  prudence,  would  be  due  process  of  law  within  tlio   niranin^of^^Jhatamendinent.     A 

~H      ^\eik'  (different  construction  has  been  given  by  this  court  to  the  phrase  'the  law  of  the 
.    UU  ^0€A^     j^^^j  ,  p^,^jj^;^g^  j^  Article  XII.  of  our  Declaration  of  Rights,  and  Kansas  v.  Zlehold 
(^  j(j.<U*-<rr\?,  not  an  authority  upon  the  meaning  of  our  Constitution.     See  Ilurtado  v.  People, 
J     0       "       '  IIOU.  S.  516;  .fones  v.  7?oW'/h.s,  and  other  Massacliu.setts  cases  cited  idu  supra.     It 
,    /  ^^^/will  hardly  be  contended  that  intoxicating  liquors  can  be  destroyed  in  this  Common- 
tJ  /px-'^''-**'     wealth  because  they  are  kept  for  sale  in  violation  of  law,  unless  this  fact  has  lieen 
^    o-{  !\        found  by  a  jury.     Fisher  v.  McGirr,  1  Gray,  1  ;  Broivn  v.  Perkins,  12  Gray,  89.     See 
y  Ehi  V.  Supervisors,  36  N.  Y.  297  ;   Gray  v.  Ayres,  7  Dana,  375 ;    Welch  v.  Stowell,  2 

^^.^^y^   CC^-^   Doug.  (Mich.)  332;  Rex  y.  Pappinean,  Strange,  686.  .  .  . 

"The  Massachusetts  Statute  of  1887,  c.  380,  was  not  passed  for  the  abatement  of  a 
cOr\'<X.  nuisance  by  destroying  or  changing  the  character  or  condition  of  tangible  property, 

,       ,  or  by  removing  obstructions  to  the  exercise  of  a  public  right.     Its  purpose  was,  I  .      ,  ,2 


CHAP   IV.]  IN   EE   CONVERSE.  ~V      681  Q/^-^i^ 


In  In  re  Converse,  137  U.  S.  G24  (1890),  in  affirming  a  jiKlgment\)f  ^/ 
a  circuit  court  wliicli  denied  a  petition  for  the  writ  of  habeas  coj-jms 
on  tlio  part  of  a  lawyer  wlio  bad  been  sentenced  in  a  State  court  for  -ryy^uJA^  < 
embezzlement  on    bis   own  confession.   Chief  Justice   Fullek,  after  m^<k/^    d 
stating  the  case,  delivered  the  opinion  of  the  court  as  follows:   "  '^^^^ ^y^ijtZ(i, 
Supreme  Court  of  Michigan  held  that  the  information  charged  the  re-         jLtMJU. 
spondent    with  the    crime  of  embezzlement ;  that  the  defendant  was  ^iTf     . 

think,  to  prevent  the  illegal  sale  of  intoxicating  liquors  by  punishing  liy  fine  or  im-  (lL.m/hxKA 

prisonment,  or  by  both,  without  limit,  in  tlie  discretion  of  the  court,  any  person  who  ^^^          ^ 

sells  or  keeps  such  liquors  for  sale  after  he  has  been  enjoined  by  the  court.     The  pre-  ,       ^ 

vention  of  crime  by  the  punishment  of  persons  found  guilty  of  an  offence  against  a  ~tvt.<X^    ^ 

general  law  is  the  end  aimed  at.     The  keeping  or  selling  of  intoxicating  licjuors  with-  ^  ^.^^..^au.  ' 

out  a  license  was  a  well-known  offence  when  our  Constitution  was  adopted,  and  the  ^ 

procedure  for  punishing  it,  or  for  forfeiting  the  liquors,  was  also  well  known.    Articles  O^raXi 

XII.  and  XV.  were  inserted  in  the  Declaration  of  Rights  as  a  protection  to  every  n^{>^^ 

individual  in  his  life,  liberty,  and  property.     If  a  statute  had  given  -jurisdiction  in  7^^^,j^,txx.^ 

pqiiity  tn   be.ir  without  a  jnrv  an  information  like  tliis.  and  had  authorized  tlie  court,  ,    ^ 

on  finding  the  respondi-nt  guilty,  to  j^mni.-li  him  in  its  discretion,  without  limit,  by  fine.  ^<xx^^^   » 

or  imprisonment,  or  botli.  in  what  .sul).-t:miiul  rc,-[)L'ct  Wduld  such  a  statute  differ  from  (,'     'j^fistu^ 

this.?      The  leoislatnre  cannot   do    indirectly   what  it  cannot  do  directly;  it  cannot  ^''^-^^ 

chang-e  the  nature  of  things  by  affixing  to  them  new  name§.     If  the  legislature,  by  ^^  (h^h^ 

statute,  can  authorize  a  court  in  a  public  prosecution    to  enjoin  any  person   from  .            (, 
illegally  keeping  or  selling  intoxicating  liquors  in  any  specified  place   within  the-^^-^T/i^    ^ 

Commonwealtli,  why  cannot  it  authorize  a  court  to  enjoin  any  person  from  illegally  ^     Cyif\M 

keeping  or  selling  intoxicating  li(|uors  anywhere  within  the  Commonwealth  ?  and,  if  ^y  _i       j, 

this  can  be  done,  why  can  it  not  authorize  a  court  at  the  suit  of  the  Commonwealth  fu.  VUa^ 

to  enjoin  any  person  from  doing  any  illegal  or   criminal  act  anywhere  within  the  V        .^^/^ 

Commonwealth,  and  to  try  without  a  jury  any  person  so  enjoined,  on  a  charge  of  'vH-'^      ^ 

having  violated  tlie  injunction,  and  to  punish  him  by  fine  and  imprisonment,  without  ^  A*-/Cx.^ 

limit,  if  the  court  find  him  guilty  ?  „    i~c\^  ■^ 

"  Except  for  constitutional  limitations,  the  legislature  could  deal  with  all  crimes  by 

way  of  injunctions  in  equity.     Indccil^  if  tliis   jmi^^li.i  ii-n    weve  confined   to  crimes  X-^iAdy^^ 

having^.ome..(.lire,ct  relation  to  a  partirnLir  ImiMin.;,  i.ii'  <  ,    i    tenement,  the  number  /    '  Ja  "^ 

°I.Sii£k.££iyi£-?-i§-IiHS^'  and  all  criiues  havCr  sc"^6  reJation  to  pH^ce.  a^s  they  niiist  oe  ^ 

couuuitlfiiLiii-imfiVLksre.     The  harboring  or  concealing  of  criminals;  the  receiving  or  _^/|»    &/1 

concealing  of  stolen  or  embezzled  projjerty;  the  making  or  keeping  of  instruments  ^  ^, 

intended  for  criminal  use;  the  violation  of  the  provisions  of  criminal  statutes  regu-  ,t/(/^vuC<.  ^ 

lating  trade  ;  burglary,  arson,  and  other  similar  offences,  —  have  a  direct  relation  to  t^  ' 

a  particular  building,  place,  or  tenement,  and  the  building,  place,  or  tenement  in  _      ^ 

which  these  offences  are  committed  may  be  said  to  be  used  for  the  purpose.     In  the  IiaAA/^^^^^ 

prosecution  of  crimes  by  way  of  injunctions  in  equity,  the  existing  Statute  of  Limita-  (/      ^      / 

tions  would  not  be  a  defence,  and  the  whole  course  of  criminal  procedure  would  be  /^//^^HT  ^ 

changed.     It  was  not  the  intention  of  the  Constitution  that  persons  should  be  pun-  ^ 

isheil  for  violating  general  laws  by  proceedings  in  equity,  or  by  a  court  acting  without  [^^^T^ 

a  jury,  and  subject  to  no  limitations  upon  its  power  to  fine  and  imprison   except  its  ^jJuJIm*^ 

own  fliscrption.     The  safeguards  of  the  common  law  were  carefully  secured  by  the  /    f-'h 

Declaratiou  of  Eights,  both  in  pul)lic  prosecutions  and  in  private  suits,  'except  iu  'i^tAXAKAJv 

cases  in  which  it  has  heretofore  been  otherways  used  and  practised.'      Tin's  is  not  )\xy(X/x.  yc 

such  a  case,  and  the  only  thing  novel  about  it  is  the  procedure.     Statutes  against  ille-  .           f 

gaily  selling  or  keeping  for  sale  intoxicating  liquors,  from  the  earliest  times,  have  "/Lo^/^'^y^^ 

been  enforced  by  criminal  complaints   or  indictments,  or   by  penal   actions.     Such  ^-^^rt^ 
statutes  were  never  enforced  in  equity  anywhere  when  the  Constitution  was  adopted. 

I  think  that  the  statute  under  which  the  present  ])roceedings  were  brought  is  incon-  1J ^lyx    1^ 

sistent  with  Article  XII.  of  the  Declaration  of  Rights.  -t-  n 

"Me.  Justice  Devens  and  Me.  Justice  William  Allen  concur  in  this  dissent."  C-^ruMT 


682  IN    RE   CONVERSE.  [CHAP.  IV. 

called  upon  to  i)lead  to  this  charge  when  arraigued  ;  that  he  pleaded 
guilt}'  of  embezzlement,  and  undoubtedly  understood  when  he  made  his 
plea  that  he  was  pleading  guilty  to  the  felony  charged  ;  that  this  con- 
clusion was  forlilied  by  the  private  examination  required  by  statute  to 
be  made  b}'  the  judge  before  sentencing  upon  a  plea  of  guilty,  which 
was  shown  to  have  been  had  in  this  case  ;  that  the  fact  that  the  resi)on- 
dent  collected  the  money  as  an  attorney  was  immaterial ;  that  if  the  act 
contained  all  the  elements  of  embezzlement,  he  was  guilty  of  the  crime 
and  was  properly  convicted  ;  that  an  attorne}'  when  he  collects  money 
for  his  client  acts  as  the  agent  of  his  client  as  well  as  his  attornc}-,  and 
if,  after  making  the  collection,  he  appropriates  the  money  to  his  own 
use  with  the  intention  of  depriving  the  owner  of  the  same,  he  is  guilty 
of  the  crime  of  embezzlement ;  that  the  conviction  was  warranted  by 
the  plea ;  and  that  the  judgment  should  therefore  be  affirmed.  As  re- 
marked b\'  Judge  Brown,  it  is  no  defence  to  an  indictment  under  one 
statute  that  a  defendant  might  also  be  punished  under  another.  And  as 
the  highest  judicial  tribunal  of  the  State  of  Michigan  ruled  that  the  word 
'agent'  in  section  9151  of  the  statutes  of  that  State  applied  to  attor- 
neys-at-law,  and  as  the  information  charged  the  defendant  with  embez- 
zlement under  that  section,  and  he  pleaded  guilty  to  embezzlement  as 
an  attorney-at-law,  the  affirmance  of  the  conviction  necessarily  followed. 
In  the  view  of  the  statute  taken  by  the  court,  the  plea  admitted  the  truth 
of  the  charge. 

"  It  is  not  our  province  to  inquire  whether  the  conclusion  reached  and 
announced  by  the  Supreme  Court  was  or  was  not  correct,  for  we  are  not 
passing  upon  its  judgment  as  a  court  of  error,  nor  can  we  consider  the 
contention  that  the  decision  was  not  in  harmony  with  the  State  Consti- 
tution and  laws. 

"  The  single  question  is  whether  appellant  is  held  in  custody  in  viola- 
tion of  the  Fourteenth  Amendment  to  the  Constitution  of  the  Unite d 
States,  in  that  the  State  thereby  deprives  him  of  liberty  without  due 
process  of  law ;  for  there  is  no  pretence  of  an  abridgment  of  his  privi- 
leges and  immunities  as  a  citizen  of  the  United  States,  nor  of  a  denial 
of  the  equal  protection  of  the  laws.  But  the  State  cannot  be  deemed 
guilty  of  a  violation  of  its  obligations~u"nder  the  Constitution  of  the 
United  States  because  of  a  decision,  even  if  erroneoiJs,  of.'itsTjigllest 
court,  while  acting  within  "its"  Jurisdictiofr  And,  conceding  that  an 
unconstitutional  conviction  and  punishment  under  a  valid  law  would  be 
as  violative  of  a  person's  constitutional  rights  as  a  conviction  and  pun- 
ishment under  an  unconstitutional  law,  we  fail  to  perceive  tliat  this  con- 
viction and  judgment  are  repugnant  to  the  constitutional  provision. 
Appellant  has  been  subjected,  as  all  persons  within  the  State  of  Michi- 
gan are,  to  the  law  in  its  regular  course  of  administration  through  courts 
of  justice,  and  it  is  impossible  to  hold  that  a  judgment  so  arrived  at  is 
such  an  unrestrained  and  arbitrary  exercise  of  power  as  to  be  utterly 
void. 

"We  repeat,  as  has  been  so  often  said  before,  that  the  Fourteenth 


CHAP.  IV.]      MOKLEY  V.    LAKE  SHORE,  ETC.  EY.  CO.  633 

Amendment  undoubtedly  forbids  any  arbitrary  deprivation  of  life,  lil> 
ei'ty,  or  i:)roperty,  and  in  the  achiiinistration  of  criminal  justice  requires 
that  no  different  or  hig;lier  |)unishment  sliall  be  imposed  on  one  than  is 
imposed  on  all  for  like  offences,  but  it  was  not  designed  to  interfere 
with  the  ijower  of  the  State  to  protect  the  lives,  liberty,  and  i^roperty 
of  its  citizens  ;  nor  with  the  exercise  of  that  power  in  the  adjudications 
of  the  courts  of  a  State  in  administering  the  process  provided  by  the 
law  of  the  State.  The  Supreme  Court  of  Michioan  did  not  exceed  its 
jurisdiction  or  deliver  a  judgment  abridging  appellant's  privileges  or 
immunities  or  depriving  him  of  the  law  of  the  land  of  his  domicil. 
Arro2os>n>th  v.  Ilarmoning,  118  U.  S.  194;  Baldioia  v.  Kansas^  129 
U.  S.  52  ;  III  re  Keminler,  136  U.  S.  436."  Judgment  affirmed. 

In  Caldwell  v.  Texas,  137  U.  S.  692  (1890),  in  dismissing  a  case 
brought  upon  error  to  the  Court  of  Appeals  of  Texas,  Chief  Justice 
Fuller,  for  tlie  court,  said,  "By  the  Fourteenth  Amendment  the 
powers  of  the  States  in  dealing  with  crime  within  their  borders  are  not 
limited,  but  no  State  can  deprive  particular  persons  or  classes  of  per- 
sons of  equal  and  impartial  justice  under  the  law.  Law,  in  its  regular 
course  of  administration  through  coui'ts  of  justicG,  is  due  process,  and 
when  secured  by  tlie  law  of  the  St:iU',  Ihe  cun.-.tiUvtional  requisition  _is 
satisfied.  2  Kent  Comm.  13.  And  due  process  is  so  secured  by  laws 
operating  on  all  alike,  and  not  subjecting  the  individual  to  the  arbitrary 
exercise  of  the  powers  of  government,  unrestrained  by  the  established 
principles  of  private  right  and  distributiye  justice.  Bank  of  Columbia 
y.  Okely,  4  Wheat.  235,  244.  The  power  of  the  State  must  be  exerted 
within  the  limits  of  those  principles,  and  its  exertion  cannot  be  sustained 
when  special,  partial,  and  arbitrary.  Iliirtado  v.  California,  110  U.S. 
516,  535.  No  question  of  repugnancy  to  the  Federal  Constitution  can 
be  fairly  said  to  arise  when  the  inquiry  of  the  State  courts  is  directed 
to  the  sufficiency  of  an  indictment  in  the  ordinar}'  administration  of 
criminal  law,  and  the  statutes  authorizing  the  form  of  indictment  pur- 
sued are  not  obyiously  yiolatiye  of  the  fundamental  principles  above 
adverted  to."  r 


x^(K  tU.    ^y^^jisw^u^  "^Mis-.'^m:^  i^^^^^hcUA.   tfc-*^  oAy^^  ^ 


.-^'.-tls  fl(     -V-..,    .  ^  t>   £^a-txxL<      />uj=^«.a-v«--v 


682  IN   RE   CONVERSE.  [CHAP.  IV. 

called  upon  to  plead  to  this  charge  when  anaigaed  ;  that  he  pleaded 
guilt}'  of  euibezzlenient,  and  undoubtedly  understood  when  he  made  his 
plea  that  he  was  pleading  guilt}'  to  the  felony  charged  ;  that  this  con- 
clusion was  forlitied  b\'  the  private  examination  required  by  statute  to 
be  made  b}'  the  judge  before  sentencing  upon  a  pica  of  guilty,  which 
was  shown  to  have  been  had  in  this  case  ;  that  the  fact  tluit  the  respon- 
dent collected  the  money  as  an  attorne}'  was  immaterial ;  that  if  the  act 
contained  all  the  elements  of  embezzlement,  he  was  guilty  of  the  crime 
and  was  properly  convicted  ;  that  an  attoi'uey  when  he  collects  money 
for  his  client  acts  as  the  agent  of  his  client  as  well  as  his  attorney,  and 
if,  after  making  the  collection,  he  appropriates  the  money  to  his  own 
use  with  the  intention  of  depriving  the  owner  of  the  same,  he  is  guilty 
of  the  crime  of  embezzlement ;  that  the  conviction  was  warranted  by 
the  plea  ;  and  that  the  judgment  should  therefore  be  affirmed.  As  re- 
marked by  Judge  Brown,  it  is  no  defence  to  an  indictment  under  one 
statute  that  a  defendant  might  also  be  punished  under  another.  And  as 
the  highest  judicial  tribunal  of  the  State  of  Michigan  ruled  that  the  word 
'agent'  in  section  9151  of  the  statutes  of  that  State  applied  to  attor- 
neys-at-law,  and  as  the  information  charged  the  defendant  with  embez- 
zlement under  that  section,  and  he  pleaded  guilty  to  embezzlement  as 
an  attorney-at-law,  the  affirmance  of  the  conviction  necessarily  followed. 
In  the  view  of  the  statute  taken  by  the  court,  the  plea  admitted  the  truth 
of  the  charge. 

"  It  is  not  our  province  to  inquire  whether  the  conclusion  reached  and 
announced  b}'  the  Supreme  Court  was  or  was  not  correct,  for  we  are  not 
passing  upon  its  judgment  as  a  court  of  error,  nor  can  we  consider  the 
contention  that  the  decision  was  not  in  harmony  with  the  State  Consti- 
tution and  laws. 

«  The  single  question  is  whether  appellant  is  held  in  custody  in  viola- 
tion of  the  Fourteenth  Amendment  to  the  Constitution  of  the  Unite d 
States,  in  that  the  State  therebv  dei^rives  him  of  liberty  without  due 
process  of  law  ;  for  there  is  no  pretence  of  an  abridgment  of  his  privi- 
leges and  immunities  as  a  citizen  of  the  United  States,  nor  of  a  denial 
of  the  equal  protection  of  the  laws.  But  the  State  cannot  be  deemed 
guilty  of  a  violation  of  its  obligations  under  the  Constitution  of  the 
United  States  because  of  a  decision   p-iq"  ^^'  " '" 


*'-  f; 


y:) 


.>i^>J 


CHAP.  IV.]      MOKLEY  V.    LAKE  SHORE,  ETC.  RY.  CO.  633 

Aineiidment  undoubtedly  forbids  any  arbitrary  deprivation  of  life,  lib- 
erty, or  property,  aud  in  the  administration  of  criminal  justice  requires 
that  no  ditf'erent  or  hi<j,her  i)unisbment  shall  be  imposed  on  one  than  is 
imposed  on  all  for  like  offences,  but  it  was  not  designed  to  interfere 
with  the  power  of  the  State  to  protect  the  lives,  liberty,  and  pro|)erty 
of  its  citizens  ;  nor  w'ith  the  exercise  of  that  power  in  the  adjudications 
of  the  courts  of  a  .State  in  administering  the  process  provided  by  the 
law  of  the  State.  The  Supreme  Court  of  Michioan  did  not  exceed  its 
jurisdiction  or  deliver  a  judgment  abridging  a])pellaut's  privileges  or 
immunities  or  depriving  him  of  the  law  of  the  land  of  his  domicil. 
Arroios}nith  v.  Harinoning^  118  U.  S.  194;  JBuldioiti  v.  Iiansas,  129 
U.  S.  52  ;  III  re  Keminler,  136  U.  S.  436."  Judgment  affirmed. 

In  Caldwell  v.  Texas^  137  U.  S.  692  (1890),  in  dismissing  a  case 
brought  upon  error  to  the  Court  of  Appeals  of  Texas,  Cuief  Justice 
Fuller,  for  the  court,  said,  ' '  By  the  Fourteenth  Amendment  the 
powers  of  the  States  in  dealing  with  crime  within  their  borders  are  not 
limited,  but  no  State  can  deprive  particular  persons  or  classes  of  per- 
sons of  equal  and  impartial  justice  under  the  law.  Law,  in  its  regular 
conr>c  of  ndministrntion  tlii-ongh  courts  of  justice,  is  due  process,  and 
wiii'ii  ^i<:iii'i_-il  l>y  liiu  law  of  UiL'  St:iU',  tlie  Lun-.Utuii<jual  requisition  is 
satisfied.  2  Kent  Comm.  13.  And  due  process  is  so  secured  by  laws 
operating  on  all  alike,  and  not  subjecting  the  individual  to  the  arbitrary 
exercise  of  the  powers  of  government,  unrestrained  by  the  established 
principles  of  private  light  and  distributive  justice.  Bank  of  Columbia 
\.  Okely^  4  Wheat.  235,  244.  The  power  of  the  State  must  be  exerted 
within  the  limits  of  those  principles,  and  its  exertion  cannot  be  sustained 
when  special,  partial,  and  arbitrarj-.  Ilurtado  v.  California,  110  U.S. 
516,  535.  No  question  of  repugnancy  to  the  Federal  Constitution  can 
be  fairh'  said  to  arise  when  the  inquiry  of  the  State  courts  is  djrected 
to  the  sufficienc}'  of  an  indictment  in  the  ordinar}'  administration  of 
criminal  law,  and  the  statutes  authorizing  the  form  of  indictment  pur- 
sued are  not  obviously  violative  of  the  fundamental  principles  above 
adverted  to."  r 


1n  Morley  v.  Zake  Shore  &c.  By.  Co.,  146  U.  S.  162  (1892),  on^jic^^ 
error  to  the  Court  of  Appeals  of  New  York,  where  the  validit\"  of  a^  jfidbitx 
State  enactment  reducing  the   rate  of  interest  on  judgments  was  in    ^      , 
question,  as  applied  to  a  judgment  obtained  before  its  passage,  Mr.     0  *  ( 
Justice  Shiras,  for  the  court,  said  :  "  The  further  contention  of  the  jt^jxl^^ 
plaintiff  in  error,  that  he  has  been  deprived  of  his  property  without  due   J    ^  i 
process  of  law,  can  be  more  readil}'  disposed  of.     If,  as  we  have  seen,    ^ 
the  plaintiff  has  actuall}-  received  on  account  of  his  judgment  all  that    •^  ^'^^ 
he  is  entitled  to  receive,  he  cannot  be  said  to  have  been  deprived  of  his  ^q^^^  f 
propert}^ ;  and  whether  or  not  a  statutory  change  in  the  rate  of  interest      /  '  A, 
thereafter  to  accrue  on  the  judgment  can  be  regarded  as  a  deprivation "" 
of  property,  the  adjudication  of  the  plaintiff's  claims  by  the  courts  of    *^^^ 


Ax  /V»  /r\      /7 


684  CHARLOTTE,    ETC.    RAILROAD   CO.    V.   GI13BES.  [cUAP.  IV.  .C,^  ^^  7^  ^ 


bis  own  State  must  be  admitted  to  be  duo  process  of  law.     Kor  are  we  «^  ^^^\^ 

aLUtljQi'izedJjiLthe  Judiciary  Act  to  review  this  judgment  of  the  State  ^  AAXXi^ij3^ 
court,  because  tliis  judgment  refuses  to  <>ive  effect  to  a  valid  contract  .  / 

or  because  such  judgment  in  its  eflfect  impairs  the  obljoation  of  a  con-  '^  t*'-'^ '<^>- 

tract_.     If  we  did,  every  case  decided  in  the  State  courts  could  be  brought  jl/^.aX^  Uu  ^ 

here,  when  the  party  setting  up  a  contract  alleged  that  the  court  took  a  yL-c^cil    Jt  *• 

different  view  of  its  obhgation  from  that  which  he  held.     Knox  v.  Ex-  ^    ^iia  ^^-o 

'lamje  Bank,  12  Wall.  379,  383."  ^  ^^    ^^^^, 


N  CliarlotU,  &c.  Railroad  Co.  v.  Gibhes,  142  U.  S.  386  (1892), 
Mu.  Justice  Fielu,  after  stating  the  case,  delivered  the  opinion  of  the 
court. 

Notwithstanding  the  several  objections  taken  in  the  complaint  to  the 

assessment  and  tax  upon  the  railroad  companies  to  meet  the  expenses 

'*^^'  and  salaries  of  the  railroad  commissioners,  the  argument  of  counsel  on 

the  hearing  was  contined  to  the  supposed  conflict  of  the  laws  authoriz- 

■fo^     ing  the  tax  with  the  inhibition  of  the  Fourteenth  Amendment  of  the 

/-      Constitution  of  the  United  States.     All  other  objections  were  deemed  to 

y    ^  be  disposed  of  b}'  the  decision  of  the  Supreme  Court  of  the  State,  that 

'F^A     the  laws  complained  of  are  not  in  conflict  with  its  Constitution. 

~        The  property  of  railroad  companies  in  South  Carolina  is  subjected  by 
'   "^     the  general  law  to  the  same  tax  as  similar  property  of  individuals,  in 
/i. "       proportion  to  its  value,  and  like  conditions  of  uniformity  and  equality 
^^«     in  its  assessment  are  imposed.      The  further  tax  laid  upon  them  to 
t\Ai        meet  the  expenses  and  salaries  of  the  railroad  commissioners  is  not  in 
proportion  to  the  value  of  their  property,  but  according  to  their  gross 
'^         income,  proportioned  to  the  number  of  miles  of  their  roads  in  the  State. 
This  tax  is  stated  to  be  beyond  any  which  is  levied  upon  other  corpora- 
-tLj^    tions  to  meet  an   expenditure  for  State  oflScers,  and,  therefore,  it  is 
contended,  constitutes  an  unlawful  discrimination  against  railroad  cor- 
porations, imposing  an  unequal  burden  upon  them,  in  conflict  with  the 
constitutional  amendment  which  ordains  that  no  State  shall  deny  to  any 
_     person  the  equal  protection  of  the  laws.     rriyatg^ojigQiillious  are_p_£i-- 
vvc^*  <  sons  within  the  meaning  of  the  amendment ;  it  has  been  so  held  in  sev- 
cVf       eral  cases  by  this  court.     Santa  Clara  Counhj  v.  Southern  Pacific 
Railroad  Co.,  118  U.  S.  394;  Pembina  Mining  Co.  \.  Pennsylrania, 
125  U.  S.  181,  189  ;   Minneapolis.  &  St  Louis  Railroad  Co.  v.  Beck- 
■^'       xnith,  129  U.  S.  26. 

'■^■^'*'  If  the  tax  were  levied  to  pay  for  services  in  no  way  connected  with 

''>-*"  the  railroads,  as,  for  instance,  to  pay  the  salary  of  the  executive  or  judi- 
v^^<^^  cial  oflScers  of  the  State,  whilst  railroad  corporations  were  at  the  same 
/i^tXr-  time  subjected  to  taxation  upon  their  property  equally  with  other  cor- 
,  ix  U^  porations  for  such  expenses,  and  other  corporations  were  not  taxed  for 
the  salaries  mentioned,  there  would  be  just  ground  of  complaint  of  un- 

"    "^^^        1  See  also  In  re  KemmJfir,  136  U.  S.  436,  448  ;   York  v.   Texas,  137  U.  S.  15  ;  In  re 
tt  A^-  Manning,  \39  U.S.  b04.  — Ed.  ,9  fi  •        >  '  0 

uXi\jL\.  ~tta.    <.jriX  ^H^<Uf.  yO^     "tttt-CVuA   jZAjJtJuM^  .^^kA^-TiX  ^t^  oUUMa^M 


:.4y.t 


V^  £»-<''-->- 


CHAP.  IV.]        CHARLOTTE,    ETC.    RAILROAD    CO.    V.    GIBBES.  685 

lawful  discriminaiioii  against  the  railroad  corporations,  and  of  their  not 
receiving  the  equal  protection  of  the  laws.  But  there  is  notliing  of  tliis 
nature  in  the  tax  in  question.  The  railroad  commissioners  are  charged 
with  a  variety  of  duties  in  connection  with  railroads,  the  i^erformance 
of  which  is  of  great  importance  in  the  regulation  of  those  instruments  of 
transportation.  .  .  . 

It  is  evident,  from  those  and  many  other  provisions  that  might  be 
stated,  that  the  duties  of  tlie  railroad  commissioners,  when  properly 
discharged,  must  be  in  the  highest  degree  beneficial  to  the  public,  secur- 
ing faithful  service  on  the  part  of  the  railroad  companies,  and  safety, 
convenience,  and  comfort  in  tlie  opei'ation  of  their  roads.  That  the 
State  has  the  power  to  prescribe  the  regulations  mentioned  there  can 
be  no  question.  Though  railroad  corporationsarc^i^nvatejcoiporations 
as  distinguished  from  those  created  for  municipal  and  governmental 
puiposes,  their  i^ses  are  public.  Tjiejj^^arefojmecHbi^ 
of  the  public  in  the  transportation  of  persons  and  nierchandise,  and  are 
invested  tor  that  purjjose  ^^ith  special  j^rivileges.  They  are  allowed  to 
exercise  the  State's  right  of  eminent  domain  that  the}'  may  appropriate 
V  for  their  uses  the  necessar\-  propert}"  of  others  upon  paying  just  com- 
pensation therefor,  a  right  which  can  only  be  exercised  for  public  pur- 
poses. And  they  assume,  by  the  acceptance  of  their  charters,  the 
obligations  to  transport  all  persons  and  merchandjse  upon  like  condi- 
tions and  at  reasonable  rates  ;  and  they  are  authorized  to  charge  rea- 
sonable compensation  for  the  services  they  thus  perform.  Eeing_^e 
recipients  of  special  priyilogos  from  the  State,  to  be  exercised  in  the 
ijiterest  of  the  public,  and  as ; iii i liiig  the  obligations  thus  mentioned,  their 
business  is  deemed  affectt'iL^vitll  a  public  ji§g,  and  to  the  extent  of  tliat 
use  is  subject  to  legislative  regiilalkin.  Georr/ia  Railroad  cO  B'l nklng 
Co.  V.  Smith,  128  U.  S.  174,  179.  That  regulation  may  extend  to  all 
measures  deemed  essential  not  merely  to  secure  the  safety  of  passengers 
and  freight,  but  to  promote  the  convenience  of  the  public  in  the  trans- 
action of  business  with  them,  and  to  prevent  abuses  by  extortionate 
charges  and  unjust  discrimination.  It  ma}-  embrace  a  general  super- 
vision of  the  operation  of  their  roads,  which  may  be  exercised  by  direct 
legislation  commanding  or  forbidding,  under  severe  penalties,  the  doing 
or  omission  of  particular  acts,  or  it  may  be  exercised  through  commis- 
sioners specially  appointed  for  that  purpose.  The  mode  or  maimer  of 
regulation  is  a  matter  of  legislative  discretion.  When  exercised  through 
commissioners,  their  services  are  for  the  benefit  of  the  railroad  corpora- 
tions as  well_as  of  tlie  public.  Both  are  served  by  the  required  super- 
vision over  the  roads  and  means  of  transportation,  and  tlicre  would 
seem  to  be  no  sound  reason  why  the  compensation  of  the  commissioners 
in  such  case  should  not  be  mot  by  the  corporations,  the  o|)eration  of 
whose  roads  and  the  exercise  of  whose  franchises  are  supervised.  In 
exacting  this  there  is  no  encroachment  upon  tlie  Fourteenth  Amend- 
ment. Requiring  that  the  burden  of  a  service  deemed  essential  to  the 
public,  in  consequence  of  the  existence  of  the  corporations  and  the  ex- 


686  CHARLOTTE,    ETC.    RAILROAD   CO.    V.    GIBBES.        [CIIAP.  IV. 

ercise  of  privileges  obtained  at  their  request,  should  lie  borne  by  the 
corporations  in  relation  to  whom  the  service  is  rendered,  and  to  whom 
it  is  useful,  is  neither  denvina:  to  the  corporations  tiie  e(|ual  pi'otection 
of  the  laws  or  making  any  unjust  discrimination  a.t^ainst  tliem.  k  All 
railroad  corporations  in  the  State  are  treated  alike  in  this  res[)ect.V  The 
necessity  of  supervision  extends  to  them  all,  and  for  that  supervision 
the  like  proportional  charge  is  made  against  all.  There  is  no  occasion 
for  similar  regulations  for  the  government  of  other  than  railroad  corpo- 
rations, and  therefore  no  charge  is  made  against  them  for  the  expenses 
and  salaries  of  the  commissioners.  The  rule  of  pgnniity  is  not  invaded 
•where  all  cor^^orations  of  the  same  kind  are  subjected  to  like  charges 
for  similar  .-ervices,  though  no  charge  at  all  is  made  against  other  cor- 
porations. There  is  no  charge  where  there  is  no  service  rendered.  The 
legislative  and  constitutional  provision  of  the  State,  that  taxation  of 
property  shall  be  equal  and  uniform  and  in  proportion  to  its  value,  is 
not  violated  by  exacting  a  contribution  according  to  their  gross  income 
in  proportion  to  the  number  of  miles  of  railroad  operated  in" the  State 
to  meet  the  special  service  required.  Barbier  v.  Connolhj^  113  U.  S. 
27  ;  Soon  Hinrj  y.  Crowley^  113  U.  S.  703  ;  Missouri  Pacific  liaihcay, 
V.  Humes,  115  U.  S.  512. 

^ There  are  many  instances  where  parties  are  compelled  to  perform 
certain  acts  and  to  bear  certain  expenses  when  the  public  is  interested 
i n  the  acts  which  ai-e  ])erformed  as  much  as  the  parMe s  themselves . 
Thus  in  opening,  widening,  or  improving  streets  the  owners  of  adjoin- 
ing propert}-  are  often  compelled  to  bear  the  expenses,  or  at  least  a  por- 
tion of  them,  notwithstanding  the  work  done  is  chiefly  for  the  benefit  of 
the  public.  So,  also,  in  the  draining  of  marsh  lands,  the  public  is  di- 
recth"  interested  in  removing  the  causes  of  malaria,  and  yet  the  expense 
of  such  labor  is  usually  thrown  upon  the  owners  of  the  property.  Quar-  -fyCMJ^'/-. 
antine  regulations  are  adopted  for  the  protection  of  the  public  against 
the  spread  of  disease,  yet  the  requirement  that  the  vessel  examined 
shall  pay  for  the  examination  is  a  part  of  all  quarantine  systems.  J/br- 
gan  v.  Louisiana,  118  U.  S.  455,  466.  (^  So,  the  expense  of  a  compul- 
sorv  examination  of  a  railroad  engineer,  to  ascertain  whether  he  is  free 
from  color  blindness,  has  been  held  to  be  properly  chargeable  against 
the  railroad  company.  Nashville,  Chattanooga  &  St.  Louis  Raibvay 
V.  Alabama,  128  U.  S.  96,  101.  So.  where  work  is  done  in  a  ixarticu- 
lar  county  for  the  benefit  of  the  public,  the  cost  is  oftentimes  cast  upon 
the  conntv  itself  instead  of  upon  the  whole  State.  Thus,  in  County  of 
Mobile  x.KlnihaJl,  102  U.  S.  601,  it  was  held  that  a  provision  for  the 
issuing  of  bonds  by  a  county  in  Alabama  could  not  be  declared  invalid, 
although  it  imposed  upon  one  county  the  expense  of  an  improvement 
in  which  the  whole  State  was  interested.  In  such  instances,  where  the 
interests  of  the  public  and  of  individuals  are  blended  in  anv  work  or 
service  imposed  bv  law,  whether  the  cost  shall  be  thrown  entirelv  upon 
the  individuals,  or  upon  the  State,  or  be  apportioned  between  them,  is 
matter  of  legislative  direction. 


CHAP.  IV.]      NEW  YORK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.  687 

"We  see  no  error  in  the  ruling  of  the  court  below  upon  the  Federal 
question  presented,  and  tlie  conclusion  we  have  reached  renders  it  un- 
necessary to  consider  how  far  the  obligation  of  the  corporation  was 
affected  by  the  alleged  amendment  made  to  its  charter. 

Judgment  affirmed. 

Justices  Bradley  and  Gray  did  not  sit  in  this  case  nor  take  part  in 
its  decision. 

NEW  YORK,  ETC.,  RAILROAD  COMPANY  v.  BRISTOL  et  al.  (sirh^< 
Supreme  Court  of  the  United  States.     1894.  a^*-iO- 

[14  Sup.  Court  Rep.  437.]  i  ^^^ 

In  error  to  the  Supreme  Court  of  Errors  of  the  State  of  Connecticut. 
In  pursuance  of  an  Act  of  the  Legislature  of  Connecticut  approved  t*n   oXXtA 
June  19,  1889,  relating  to  the  grade  crossings  of  railroads,  the  railroad  to    ^  *^ 
commissioners  of  that  State,  on  September  2,   1890,   made  an  order  ^  [^  /? 
reciting  that  whereas  the  directors  of  the  New  York  &  New  England     //        .  ' 
railroad  company  had  failed  to  remove,  or  apply  for  the  removal,  dur-    ^'  . 

ing  the  year  ending  August  1,  1890,  of  any  grade  crossing  of  a  highway  /a.4i-Ct  ^j 
which  crossed  or  was  crossed  by  their  railroad,  and  whereas,  in  their  Ji^^jdUoJ^ 
opinion,  said  directors  should  have  applied  for  the  removal  of  the  grade  ^       . 
crossing  of  their  road  and  the  highway  known  as  "  Main  Street,"  in  the  , 

town  of  Bristol,  and  directing  a  hearing  upon  the  matter,  with  notice  to   ftxAa^vcri 
the  railroad  company,  the  town,  and  the  owners  of  land  adjoining  that --^fccAjiVvi 
portion  of  the  highwaj'.     The  hearing  was  had  on  several  days,  from  ki 

September  24,  1890,  to  Februar}'  11,   1891;  and  the  commissioners.  /T 

being  of  opinion  that  the  financial  condition  of  the  company  warranted  -^t^vh"^ 
the  order,  and  that  public  safety  required  it,  ordered  the  crossing  re-  /\uXi\UA 
moved,   and  determined    and  directed   the  alterations,    changes,    and   /»i-     ^jji 
removals  to  be  made  and  done,  and  that  they  be  executed  by  the  rail-     t         /i  , 
road  company  at  its  sole  exi)ense,  including  damages  occasioned  there-  '*^*p^ 
by.     The  company  appealed  from  this  order  to  the  Superior  Court  of  O-A*^^ 
the  Count}'  of  Hartford,  the  petition  for  appeal  setting  forth  various  'uu.a^dx  (tv 
grounds  therefor.     That  court,  upon  hearing  the  parties  and  their  evi-  j^^rzi^A 
dence.  found  as  facts  that  the  railroad  company  was  financially  able  to  jf,    .-y/ 
execute  the  commissioners'  order,  and  that  the  safety  of  the  public  re-^ '*^ 
quired  the  removal  of  the  grade  crossing  ;  and  affirmed  the  order.     The  -Jlcc^c-n^^. 
company  appealed   to  the   Supreme  Court  of  Errors  of  Connecticut,    A ^^^^^^v  \ 
which  decided  that  there  was  no  error  in  the  judgment  appealed  from  ^^^  -    -^ 
(62  Conn.  527,  26  Atl.  122) ;  and  thereupon  a  writ  of  error  was  allowed    '^^^ 
to  this  court,  and  errors  assigned,  as  follows :  — 

"  (1)   The  said  court  erred  in  holding  that  the  statute  under  which 


^  The  statement  of  facts  is  shortened.    This  case  will  appear  in  \^\  U.  S.  556.  — Ed. 


688  NEW  YORK,  ETC.    KAILKOAD  CO.  V.  BKISTOL  ET  AL.       [CIIAP.  W\ 

were  had  the  proceedings  as  set  forth  in  the  order  of  the  railroad  com- 
missioners exemplified  in  the  record  of  the  ease  justified  said  order,  and 
in  alHrming  the  judgment  of  the  Superior  Court  in  and  for  Hartford 
County,  allirming  said  order,  and  in  overruling  plaintiff's  claim  that  said 
^"^^^  '  statute  was  void  as  violating  the  Constitution  of  the  United  States,  in 
L  jV       that  it  impaired  the  obligation  of  the  contracts  made  by  said  company 

.   ■      with  the  holders  of  its  bonds  and  preferred  stock,  by  making  it  impos- 
*"  sible  for  said  company  to  pay  the  interest  on  its  bonds  and  dividends 

jt  iiAyhC'-  on  its  preferred  stock,  as  agreed  between  them  and  said  comi)any,  and 
^  '  tv        yet  maintain  and  operate  its  railroad  ofliciently  ;  and,  further;  in  that  it 
/         took  the  ])ropcrty  of  the  company  without   due  process  of  law,  and 
I.        denied  to  it  the  equal  protection  of  the  law, 
t*  T*^^^       '*  (2)    The  said  court  erred  in  overruling  the  claim  of  the  plaintiff  in 
lx^  C^~    error  in  the  twelfth  paragraph  of  its  petition  of  appeal  from  the  railroad 
erLttA.    commissioners  to  the  Supreme  Court,  as  set  forth  in  the  recoi-d,  that 
"/  said  statute  was  void,  and  was  no  justification  of  said  order,  under  the 

-^f         Constitution  of  the  United   States   and   the   Fourteenth   Amendment 
A/\A.  ^        thereof." 
n       ,^  -  Chas.  E.  Perkins,  for  plaintiff  ;  John  J.  Jennings  and  IL  C.  liohin- 

_.      son,  for  defendants. 
U   o/^lM'^       ]\j^j^.  Chief  Justice  Fuller,  after  stating  the  facts  in  the  foregoing 
*jj^  fMA-  language,  delivered  the  opinion  of  the  court.  .  .  . 
■        .  It  must  be  admitted  that  the  Act  of  June  19.  1889.  is  directed  to  the 

extinction  of  grade  crossings,  as  a  menace  to  public  safety,  and  that  it 
v^^.a/^x  -    is  therefore  within  the  exercise  of  the  i)olice  power  of  the  State.     And, 
,  rL.  as  before  stated,  the  constitutionalit}'  of  similar  prior  statutes,  as  well 

'l^^,  as  of  that  in  question,  tested  by  the  provisions  of  the  State  and  Federal 

.^^      f-       Constitutions,  has  been  repeatedly  sustained  by  the  courts  of  Connecti- 
^^^  cut.      Woodnif  v.  Catli7i,   54  Conn.   277,   6  Atl.    849  ;     Westbroo/c's 

v^^<^  1}  Ax>peal,  57  Conn.  95,  17  Atl.  368  ;  New  York  &  N.  E  R.  Co.'s  Ap- 
to^-uL  peal,  58  Conn.  532,  20  Atl.  670;  Woodruff  \.  Railroad  Co.,  59  Conn. 
63,  20  Atl.  17  ;  State's  Attorney  v.  Selectmen  of  Branford,  59  Conn. 
I  i^^  402,  22  Atl.  336  ;  New  York  &  N  E.  R.  Co.  v.  City  of  Waterbury, 
MmU^-  60  Conn.  1,  22  Atl.  439  :  City  of  Middletoivn  v.  New  York,  etc.,  R. 
(^  ei,  Co.,  62  Conn.  492,  27  Atl.  119. 

UuAJin  111  Woodruff  X.  Cotlin,  the  court,  speaking  through  Pardee,  J.,  said, 

L      -  in  reference  to  a  similar  statute  :  "  The  Act,  in  scope  and  purpose,  con- 

^^'^'*^  cerns  protection  of  life.     Neither  in  intent  nor  fact  does  it  increase  or 

-  (p^""*'''^  diminish  the  assets  either  of  the  city  or  of  the  railroad  corporations.     It 

ijii-^-^^.        is  the  exercise  of  the  governmental  power  and  duty  to  secure  a  safe  high- 

.    V  .    way.     The  legislature,  having  determined  that  the  intersection  of  two 

'^'^f^       railways  with  a  highwa}'  in  the  cit}'  of  Hartford  at  grade  is  a  nuisance 

fcJ«v\  -^     dangerous  to  life,  in  the  absence  of  action  on  the  part  either  of  the  city  or 

/Jw/sxctt^^^^  ^^  railroads,  ma}*  compel  them,  severally,  to  become  the  owners  of 

L  the  right  to  la}-  out  new  highways  and  new  railways  over  such  land,  and 

*%   J     •.      in  such  manner  as  will  separate  the  grade  of  the  railways  from  that  of 

i,  xtL'^      the  highwa}'  at  intersection  ;  may  compel  them  to  use  the  right  for  the  ac- 

oUa     l^  i^Vt*^  t^  tU  ^l^^JUju,   ^^Mrvv^   s-^-ttji  citiO*^    aaA^  n,^J^   ^ 


CHAP.  IV.]       NEW  YORK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.  ^'^'^     ^"^^ 


689 


/ 


^ 


complishment  of  the  desired  end  ;  ma}'  determine  that  the  expense  shall 
be  paid  by  either  corporation  alone,  or  in  part  by  both ;  and  ma}-  en- 
force obedience  to  its  judgment.  That  the  legislature  of  this  State  has 
the  power  to  do  all  this,  for  the  specified  purpose,  and  to  do  it  through 
the  instrumentality  of  a  commission,  it  is  now  onl\'  necessary  to  state, 
not  to  argue." 

And  as  to  this  Act  the  court,  in  58  Conn.  532,  20  Atl.  G70,  on  this 
Company's  appeal,  held  that  grade  crossings  were  in  the  nature  of  nui- 
sances, which  it  was  competent  for  the  legislature  to  cause  to  be  abated, 
and  that  it  could,  in  its  discretion,  require  an}-  party  responsible  for  the 
creation  of  the  evil,  in  the  discharge  of  what  were  in  a  sense  govern- 
ernmental  duties,  to  pay  any  pait,  or  all,  of  the  expense  of  such 
,  abatement. 

It  is  likewise  thoroug-hly  established  in  this  court  that  the  inhibitions 
of  the  Constitution  of  the  United  States  upon  the  impairment  of  the 
obligation  of  contracts,  or  the  deprivation  of  property  without  due  pro- 
cess, or  of  the  equal  protection  of  tiie  laws,  by  the  States,  are  not 
violated  by  the  leoitimatc  exercise  of  legislative  power  in  securing  the 
.)^"^]niblic  safety,  health,  and  morals.  The  governmental  power  of  self- 
protection  cannot  be  contracted  away,  nor  can  the  exercise  of  rights 
!■  granted,  nor  the  use  of  propert}-,  be  withdrawn  from  the  implied  liability 
'^^  to  governmental  regulation  in  particulars  essential  to  the  preservation 
of  the  community  from  injury.  Beer'  Co.  v.  llassachusetis,  97  U.  S. 
25  ;  Fertilizing  Co.  v.  ILjde  ParJc,  97  U.  S.  659  ;  Barhier  v.  ■Connolly., 
113  U.  S.  27,  5  Sup.  Ct.  357;  New  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650,  6  Sup.  Ct.  252;  Mugler  v.  Kansas,  123 
U.S.  623,  8  Sup.  Ct.  273  ;  Budd  v.  Nexo  York,  143  U.  S.517,  12  Sup. 
Ct.  468.  And  also  that  "  a  power  reserved  to  the  legislature  to  alter, 
amend,  or  repeal  a  charter  authorizes  it  to  make  any  alteration  or 
amendment  of  a  charter  granted  subject  to  it,  which  will  not  defeat  or 
substantially  impair  the  object  of  the  grant,  or  any  rights  vested  under 
it,  and  which  the  legislature  may  deem  necessary  to  secure  either  that 
object  or  any  public  right."  Close  v.  Glenioood  Cemetery,  107  U.  S. 
466,  476,  2  Sup.  Ct.  267;  Watenoorks  v.  Schottler,  110  U.  S.  347,  4 
Sup.  Ct.  48;  Pennsylvania  College  Cases,  13  Wall.  190;  Tomlinson 
V.  Jessiq),  15  Wall.  454. 

^  The  charter  of  this  company  was  subject  to  the  legislative  power  over 
it  of  amendment,  alteration,  or  repeal,  specifically  and  under  general 
law^5  Priv.  Laws  Conn.  pp.  543,  547  ;  7  Sp.  Laws  Conn.  p.  466  ;  8 
Sp.  Xaws  Conn.  p.  353  ;  Sp.  Laws  Conn.  1881,  p.  64  ;  Gen.  St.  1875, 
p.  278;  Gen.  St.  1888,  §  1909;  JVew  York,  etc.,  E.  Co.  v.  City  of 
Waterhurij,  60  Conn.  1,  22  Atl.  439. 

The  contention  seems  to  be,  however,  that  the  legislature,  in  discharg- 
ing the  duty  of  the  State  to  protect  its  citizens,  has  authorized  In'  the 
enactment  in  question  that  to  be  done  which  is,  in  certain  particulars,  so 
unreasonable,  and  so  obviously  uniustified  by  the  necessity  invoked,  as 
to  bring  the  Act  within  constitntioiial  prohibitions. 
VOL.  I.  —  44 


690  NEW  YOKK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.       [CHAP.  IV. 

The  argument  is  Unit  the  existing  grades  of  raih-oad  crossings  were 
leo-ally  established,  in  accordance  with  the  then  wishes  of  the  people, 
but,  with  the  increase  in  population,  crossings  formerly  safe  had  become 
no  longer  so ;  that  the  highways  were  chiefly  for  the  benefit  of  the  local 
public,  and  it  was  the  duty  of  the  local  municipal  cori)oration  to  keep 
them  safe  ;  that  this  law  uDplied  to  railroad  corporations  treatment  never 
accorded  to  other  citizens  in  allowina:  the  imposition  of  the  entire  cx- 
[)ense  of  chiiii('^e  of  grade,  botli  costs  and  damages,  irrespectivt^  of  bene- 
fits, on  those  comuanies,  and  in  that  respect,  and  in  the  exemption  of 
the  town  from  its  just  share  of  the  burden,  denied  to  them  the  equal 
protection  of  the  laws. 

And  further  that  the  order,  and  therefoi-e  the  law  which  was  held  to 
authorize  it,  amounted  to  a  taking  of  property  without  due  process,  in 
that  it  required  the  removal  of  tracks  many  feet  from  their  present  loca- 
tion, involving  the  destruction  of  much  private  property,  the  excavation 
of  the  principal  highway,  and  those  communicating,  and  the  building  of 
an  expensive  iron  bridge,  all  at  the  sole  expense,  including  damages,  of 
the  company,  without  a  hearing  as  to  the  extent  of  the  several  respon- 
sibilities of  the  company  and  the  town,  or  as  to  the  expense  of  the 
removal  of  this  dangerous  crossing,  as  compared  with  other  dangerous 
crossings,  or  of  the  degree  of  the  responsibility  of  the  company  for  the 
dangers  existing  at  this  particular  crossing.  The  objection  is  not  that 
hearing  was  not  required  and  accorded,  which  it  could  not  well  be,  in 
view  of  the  protracted  proceedings  before  the  commissioners  and  the 
Superior  Court  and  the  review  in  the  Supreme  Court,  but  that  the  scope 
of  inquiry  was  not  as  broad  as  the  statute  should  have  allowed,  and  that 
the  particular  crossing  to  be  removed  was  authorized  to  be  prejudged. 

It  is  further  objected  that  the  Supreme  Court  had  so  construed  the 
statute  that,  upon  the  issue  whether  the  financial  condition  of  the  com- 
pany warranted  the  order,  no  question  of  law  could  be  raised  as  to  the 
extent  of  the  burdens  which  a  certain  amount  of  financial  ability  would 
warrant,  and  thus,  in  that  aspect,  by  reason  of  the  large  amount  of  ex- 
penditure which  might  be,  and  as  matter  of  fact  was,  in  this  instance, 
required,  the  obligation  of  the  contracts  made  by  the  company  with  the 
holders  of  its  securities  was  impaired.  Complaint  is  made  in  this  con- 
nection of  the  striking  out  by  the  Superior  Court  of  certain  paragraphs 
of  the  petition  on  appeal,  held  by  that  court  and  the  Supreme  Court  to 
plead  mere  matters  of  evidence,  and  the  decision  by  the  Supreme  Court 
that  all  the  material  issues  were  met  by  the  findings.  Those  issues 
were  stated  by  the  court  to  be  whether  or  not  the  company's  directors 
had  removed,  or  applied  for  the  removal  of,  a  grade  crossing,  as  required 
by  the  statute  ;  whether  or  not  the  grade  crossing  ordered  to  be  removed 
by  the  commissioners  was  in  fact  a  dangerous  one,  which  the  directors 
ought  to  have  removed,  or  for  the  removal  of  which  the  directors  ought 
to  have  applied  ;  and  whether  or  not  the  company's  financial  condition 
was  such  as  to  warrant  the  order. 

And  upon  these  premises  it  is  urged,  in  addition,  that  the  right  to 


CHAP.  IV.]      NEW  YORK,  ETC.  RAILROAD  CO.  V.  BRISTOL  ET  AL.  691 

amend  the  charter  of  the  corporation  was  not  controlling,  because  that 
(lid  not  incUule  the  riuht  to  arbitrarily  deprive  the  stockliolders  of  their 
property,  which,  though  lield  by  them,  fur  ijurposes  of  manaucment  and 
control,  under  a  corporate  organization  created  b}'  special  law,  was 
nevertheless  private  propert}-,  not  by  virtue  of  the  charter,  but  "  by  force 
of  the  most  fundamental  and  general  laws  of  modern  society',  which, 
from  their  nature,  necessaril}'  protect  alike  and  full}'  all  legitimate 
acquisitions  of  tlie  members  of  the  community,  no  matter  whether  held 
b}'  them  as  individuals  or  partnerships  or  associations  or  corporations." 

The  Supreme  Court  of  Connecticut  held  that  the  statute  operated  as 
an  amendment  to  the  charters  of  the  railroad  corporations  atfected  by 
it.;  that,  as  grade  crossings  are  in  the  nature  of  nuisances,  the  legisla- 
ture had  a  riglit  to  cause  them  to  be  abated,  and  to  require  either  r->arty 
to  pay  the  whole  or  any  portion  of  the  expense  ;  that  the  statute  was 
not  unconstitutional,  in  authorizing  the  commissioners  to  determine 
their  own  jurisdiction,  and  that,  besides,  the  right  of  appeal  saved  the 
railroad  companies  from  any  harm  from  their  findings  ;  that  it  was  the 
settled  polic}'  of  the  State  to  abolish  grade  crossings  as  rapidly  as  could 
be  reasonabU'  done  ;  and  that  all  general  laws  and  police  regulations 
affecting  corporations  were  binding  upon  them  without  their  assent. 

"We  are  asked,  upon  the  grounds  above  indicated,  to  adjudge  that  the 
highest  tribunal  of  the  State  in  which  these  proceedings  were  had,  com- 
mitted, in  reaching  tliese  conclusions,  errors  so  gross  as  to  amount  in 
law  to  a  denial  by  the  State  of  rights  secured  to  the  company  b}^  the 
Constitution  of  the  United  States,  or  that  the  statute  itself  is  void  by 
reason  of  infraction  of  the  provisions  of  that  instrument. 

But  this  court  cannot  proceed  upon  general  ideas  of  the  requirements 
of  natural  justice,  apart  from  the  provisions  of  the  Constitution  sup- 
posed to  be  involved,  and  in  respect  of  them  we  are  of  opinion  that  our 
interposition  cannot  be  successfully  invoked. 

As  observed  by  Mr.  Justice  Miller  in  Davidson  v.  Neio  Orleans,  96 
U.  S.  97,  104,  the  Fourteenth  Amendment  cannot  be  availed  of  ^'  as  a 
means  of  bringing  to  the  test  of  the  decision  of  this  court  the  abstract 
opinions  of  every  unsuccessful  litigant  in  the  State  court  of  the  justice 
of  the  decision  against  him,  and  of  the  merits  of  the  legislation  on 
which  such  a  decision  may  be  founded."  To  use  the  language  of  Mr. 
Justice  Field  in  Railway  Co.  v.  Humes,  115  U.  S.  512,  520,  6  Sup. 
Ct.  110,  "  it  is  hardly  necessary  to  say  that  the  hardship,  irapolic}',  or 
injustice  of  State  laws  is  not  necessarily  an  objection  to  their  constitu- 
tional validity,  and  that  the  remedy  for  evils  of  that  character  is  to  be 
sought  from  State  legislatures." 

The  conclusions  of  this  court  have  been  repeatedly  announced,  to  the 
effect  that  though  railroad  corporations  are  private  corporations,  as  dis- 
tinguished from  those  created  for  municipal  and  governmental  ])urposes, 
their  uses  are  public,  and  they  are  invested  with  the  riglit  of  eminent 
domain,  only  to  be  exercised  for  public  purposes  :  tliat  therefore  thev 
are  subject  to  legislative  control  in  all  respects  necessary  to  |)rotect  the 


G92  NEW  YORK,  ETC.  RAILROAD  CO,  V.  BRISTOL  ET  AL.      [CHAP.  IV. 

public  against  danger,  injusticG;  and  oppression  ;  that  the  State  has 
])Ower  to  exercise  this  control  through  boards  of  commissioners ;  tha^ 
there  is  no  unjust  discrimination,  and  no  denial  of  the  equal  protection 
of  the  laws,  in  reuulations  a|)i)licable  to  all  ruThoad  cui'ijoration^lilikiir; 
nor  is  there  necessarily  such  denial,  nor  an  infringement  oT  the  obliga- 
tion of  contracts,  in  the  imi)Osition  upon  them,  in  particular  instances, 
of  the  entire  expense  of  the  performance  of  acts  required  in  the  i)uV)I ic 
interest,  in  the  exercise  of  legislative  discretion  ;  nor  nrp  th^^y  tbfifliy 
deprived  of  property  without  due  process  of  law,  by  statutes  under 
which  the  result  is  ascertained  in  a  mode  suited  to  the  nature  of  the 
case,  and  not  merely  arbitrary  and  capricious  ;^and  that  the  adjudication 
of  the  highest  court  of  a  State  that,  in  such  particulars,  a  law  enacted 
in  the  exercise  of  the  police  power  of  the  State  is  valid,  will  not  be  re- 
versed b}'  this  court  on  the  ground  of  an  infraction  of  the  Constitution 
of  the  United  States.  ^ -Kai'Zioay  ^o.  v.  Alabama,  128  U.  S.  96,  9  Sup. 
Ct.  28  ;  Banking  Co.  v.  Smith,  128  U.  S.  174,  9  Sup.  Ct.  47  ;  Eaihoay 
Co.  V.  Beckwith,  129  U.  S.  26,  9  Sup.  Ct.  207  ;  DentY.  West  Virginia, 
129  U.  S.  114,  9  Sup.  Ct.  231 ;  Bailroacl  Co.  v.  Gihbes,  142  U.  S.  386, 
12  Sup.  Ct.  255  ;  Bailroad  Co.  v.  Emmons,  149  U.  S.  364,  13  Sup. 
Ct.  870.  Judgment  affirmed. 

NOTE. 

The  subjects  treated  in  this  chapter  are  intimately  connected  with 
those  of  the  next,  and  are  further  illustrated  there.  —  Ed. 


CHAP,  v.]  COMMONWEALTH   V.   ALGER.  693 


■^ 


CHAPTER  V. 


UNCLASSIFIED  LEGISLATIVE   POWER.    THE   SO-CALLED 
'^         POLICE   P0WER.1 


COMMONWEALTH   v.   ALGER. 
Supreme  Judicial  Court  of  Massachusetts.     1851. 

[7  Cush.  53.] 

This  was  an  indictment  against  the  defendant  for  an  alleged  breach  of 
the  statutes  of  this  Comnionvvealth  establishing  the  commissioners'  lines, 
so-called,  in  the  harbor  of  Boston,  by  erecting,  buildino;,  and  maintaining 
a  wharf  over  and  beyond  those  lines  into  said  harbor. 

The  indictment  was  found  and  returned  into  the  Municipal  Court  of 
the  city  of  Boston  at  June  Term,  1849.  It  set  forth  the  following 
statutes  for  fixing  and  limiting  the  lines  of  the  harbor  of  Boston  :  "  An 
Act  to  preserve  the  Harbor  of  Boston,  and  to  prevent  Encroachments 
therein,"  passed  April  19,  1837.  St.  1837,  c.  229,  7  Special  Laws, 
808.  .  .   . 

The  first  and  second  sections  of  the  Act  of  1837,  c.  229,  established 
a  line  by  local  objects  designated  from  the  lower  South  Boston  Free 
Bridge,  around  the  easterly  and  northerly  sides  of  the  cit}',  to  the  abut- 
ment on  the  Boston  side  of  Warren  Bridge,  above  Charles  River  Bridge. 
The  third,  fourth,  fifth,  and  sixth  sections  of  this  Act  were  as  follows. 
[These  are  given  in  a  note  below."    The  case  also  recites  the  substance 

1  Discussions  of  what  is  called  the  "police  power  "are  often  nninstructive,  from 
a  lack  of  discrimination.  It  is  common  to  recognize  that  the  subject  is  hardly  sus- 
ceptible of  definition,  but  very  often,  indeed,  it  is  not  perceived  that  the  real  question 
in  hand  is  that  grave,  difficult,  and  fundamental  matter,  —  what  are  the  limits  of 
lef^islative  power  in  general?  In  talkiiiy  of  the  "  police  power."  sometimes  the  question 
relates  to  the  limits  of  a  power  admitted  and  fairly  well-known,  ns  that  of  taxation  or  cmi- 
neut  domain  ;  sometimes  to  the  lino  liotwcen  tlie  local  legislative  pdwer  of  the  States  and 
tlie  Federal  legislative  power  /sunietimes  to  legislation  as  settling  the  details  of  munici- 
pal affairs,  and  local  arrangements  for  tlie  promotion  of  good  order,  licalth,  comfort. 
and  convenience^  sometimes  to  that  special  form  of  legislative  action  which  applies 
tlie  maxim  of  Sic  utere  tuo  ut  alienum  nnn  Icedas,  adjusts  and  accommodates  interests 
that  may  conflict,  and  fixes  specific  limits  for  each.  But  often,  tlie  discussion  turns 
upon  the  true  limits  and  scope  of  legislative  power  in  general,  —  in  whatever  way  it 
may  seek  to  promote  the  general  welfare.  —  Ed. 

2  "  Section  .3.  No  wharf,  pier,  or  building,  or  encumbrance  of  any  kind,  shall  ever 
hereafter  be  extended  beyond  the  said  line  into  or  over  the  tide-water  in  said  harbor. 

"  Section  4.    No  person  shall  enlarge  or  extend  any  wharf  or  pier,  wliich  is  now 


694  COMMONWEALTH    V.    ALGER.  [CHAP.  V 

of  Acts  Oi"  1840,  1841,  and  1847,  altering  the  former  lines  or  establish- 
ing otliers.]  .   .   . 

The  indietnient  then  averred  that  all  the  parts  of  the  harbor  of  Bos- 
ton, outside  of  and  beyond  the  commissioners'  lines,  and  between  those 
lines  and  the  high  sea,  were,  and  from  the  time  whereof  the  memor}' 
of  man  was  not  to  the  contrary,  an  ancient,  navigable  harbor,  and 
an  ancient  and  common  highway  for  all  citizens  of  the  Common- 
wealth. .  .  .  [Here  follow  the  formal  charges  of  unlawful  building 
beyond  the  lines.] 

At  the  trial  in  the  Municipal  Court  before  Wells,  C.  J.,  at  Septem- 
ber Term,  1849,  the  attorney  for  the  Commonwealth  put  in  evidence  a 
statement  agreed  to  and  signed  by  himself  and  the  defendant,  exhibit- 
ing the  following  facts :  Tlie  defendant  is,  and  for  more  than  thirty 
years  past  has  been,  seised  of  an  estate  on  Fourth  Street  in  South 
Boston,  consisting  of  u]jl:ind  and  of  flats  belonging  thereto,  just  above 
the  old  South  Boston  Bridge,  and  bounding  on  that  arm  of  the  sea, 
lying  between  Boston  proper  and  South  Boston,  in  and  tlu'ough  which 
the  sea  ebbs  and  flows  to  and  from  a  bay  above,  called  South  Bay.  In 
1843,  he  began  to  build  a  wharf  on  his  said  flats,  and  constructed  the 
northerly  w^all  thereof  from  his  upland  nearly  to  the  channel,  and  then 
filled  in  and  constructed  said  wharf,  but  did  not  comi)lete  it  until  the  com- 
missioners' line  of  1847  had  been  established,  after  which  he  built  the 
triangular  piece  set  forth  in  the  indictment,  which  forms  a  part  of  the 
•wharf  as  originally  commenced  by  him.  This  triangular  piece  is  beyond 
said  line,  but  is  built  on  the  defendant's  own  flats  ;  it  is  not  one  hun- 
dred rods  from  the  upland,  is  not  below  low  water-mark,  is  no  injury  to 
navigation,  and  is  not  so  far  beyond  the  commissioners'  line  or  so  near 
the  channel  as  the  northerly  w^all  of  the  wharf  was  built  in  1843. 

No  other  evidence  was  off'ered. 

The  defendant  contended  and  requested  the  judge  to  rule  and  instruct 
the  jury  that  the  evidence  offered  did  not  sustain  the  indictment,  and 
that  the  defendant,  upon  these  facts,  was  entitled  to  a  verdict.  But 
the  judge  refused  so  to  rule,  and  instructed  the  jury  that  on  the  evi- 
dence introduced,  if  believed,  the  government  were  entitled  to  a 
verdict.      Whereupon  the  jurj'  returned  a  verdict  of  guilty  ;  and  the 

erected  on  the  inner  side  of  said  line,  further  towards  the  said  line  than  such  wharf  or 
pier  now  stands,  or  than  the  same  might  have  been  lawfully  enlarged  or  extended  before 
the  passing  of  this  Act,  without  leave  first  obtained  from  the  legislature. 

"  Sectiox  5.  No  person  shall  in  any  other  part  of  the  said  harbor  of  Boston,  belong- 
ing to  the  Commonwealth,  erect  or  cause  to  be  erected  any  wharf  or  pier,  or  begin  to 
erect  any  wharf  or  pier  therein,  or  place  any  stones,  wood,  or  other  materials  in  said 
harbor,  or  dig  down  or  remove  any  of  the  land  covered  with  water  at  low  tide,  in  said 
harbor,  with  intent  to  erect  any  wharf  or  pier  therein,  or  to  enlarge  or  extend  any 
wharf  or  pier  now  erected:  proivded,  hoirevrr,  that  nothing  herein  contained  shall  be 
construed  to  restrain  or  control  the  lawful  rights  of  the  owners  of  any  lands  or  flats  in 
said  harbor." 

[Section  6  imposes  penalties,  and  declares  the  forbidden  obstructions  to  be  nui- 
sances.] 


CHAP,  v.]  COMMONWEA.LTII    V.    ALGER.  695 

presiding  judge,  being  of  opinion  tliat  the  questions  of  law  arising  in 
tlie  case  were  so  doubtful  and  important  as  to  require  the  decision  of 
this  court,  with  the  consent  of  tlie  defendant,  reported  the  case  for  the 
purpose  of  presenting  those  questions. 

The  case  was  argued  at  March  Term,  1850. 

S.  D.  Parker,  County  Attornc}',  for  the  Commonwealth. 

JB.  R.  Curtis  and  C.  A.  Welch,  for  the  defendant. 

The  opinion  was  delivered  at  March  Term,  1S53.  7^ 

Shaw,  C.  J.  In  proceeding  to  give  judgment  in  the  present  case,  the 
court  are  deeph'  impressed  with  the  importance  of  the  principles  which 
it  involves,  and  the  magnitude  and  extent  of  the  great  public  interests, 
and  the  importance  and  value  of  the  private  rights,  directl}-  or  indirectly 
to  be  affected  by  it.  It  affects  the  relative  riglits  of  the  public  and  of 
individual  proprietors,  in  tlie  soil  lying  on  tide-waters,  between  liigh 
and  low  water-mark,  over  which  the  sea  ebbs  and  flows,  in  the  ordinar}'  ^ 
action  of  the  tides.  ... 

Tlie  uncontested  facts  in  the  present  case  ai-e,  that  the  defendant  was 
owner  of  land,  bounded  on  a  cove  or  arm  of  the  sea,  in.  which  the  tide 
ebbed  and  flowed,  that  he  built  the  wharf  complained  of,  on  the  flats 
before  his  said  land,  between  high  and  low  water-mark,  and  within  one 
hundred  rods  of  his  upland,  but  below  the  commissioners'  line  as  fixed 
by  one  of  these  statutes  ;  although  it  was  so  built  as  not  to  obstruct  or 
impede  navigation.  This  certainly  presents  the  case  most  favorably  for 
the  defendant. 

"VVe  ma}',  perhaps,  better  embrace  the  several  subjects  involved  in  the 
inquiry,  b}-  considering, 

First,  What  are  the  rights  of  owners  of  land,  bounding  on  salt  water, 

whom  it  is  convenient  to  designate  as  riparian  proprietors,  to  the  flats 

over  which  the  tide  ebbs  and  flows,  as  such  rights  are  settled  and  estab- 

lislied  b}'  the  laws  of  Massachusetts  ;  and, 

.         Second,  What  are  the  just  powers  of  the  legislature  to  limit,  control, 

or  regulate  the  exercise  and  cnjoymGnt  of  these  rights. 

-jw     I.  By  the  common  law  of  England,  as  it  stood  long  before  the  emi- 

y^  gration  of  our  ancestors  to  this  country  and  the  settlement  of  the  colony 

A    ^        of  Massachusetts,  the  title  to  the  land  or  property  in  the  soil,  under  the 

\)-    .  ^sea,  and  over  which  the  tidc-wators  ebbed  and  flowed,  including  flats,  or 

^  the  sea-shore,  lying  between  high  and  low  water-mark,  was  in  the  king, 

as  the  representative  of  the  sovereign  power  of  the  country.    But  it  was 

/  held  by  a  rule  equally  well  settled,  that  this  right  of  proi^erty  was  held 

by  the  king  in  trust,  for  public  uses,  established  by  ancient  custom  or 

regulated  by  law,  th e  principal  of  which  were  for  fishing  and  navigation . 

These  uses  were  held  to  be  public,  not  only  for  all  the  king's  subjects. 

but  for  foreigners,  being  subjects  of  States  at  peace  with  England,  and 

coming  to  the  ports  and  havens  of  England,  with  tlieir  ships  and  vessels, 

for  the  purposes  of  trade  and  commerce.  .  .  . 

Assuming  that  by  the  common  law  of  England,  as  above  stated,  the 
right  of  riparian  proprietors,  bounding  upon  tide-waters,  extended  to 


G96  COMMONWEALTH   V.    ALGER.  [CHAP.  V. 

high  water-mavk  onl}',  and  assiiniing  that  the  first  settlers  of  Massa- 
chusetts regarded  the  hiw  of  Eiighmd  as  their  law,  and  governed  them- 
selves by  it.  it  follows  tliat  the  earliest  grants  of  land  boLindin<2:  on  tide- 
waters would  be  to  the  high  water-line  and  not  below  it,  and  would  have 
so  remained   but  for  the  colony  ordinance,  now  to  be  considered. 

Tliis  is  commonl}'  denominated  the  ordinance  of  1G41  ;  but  this  date 
is  probably  a  mistake.  It  is  found  in  the  Ancient  Charters,  148,  in 
connection  with  another  on  free  fishing  and  fowling,  and  marked  1G41, 
47.  That  on  free  fishing,  etc.,  is  taken  in  terms  from  the  "  Body  of 
Liberties,"  adopted  and  passed  in  1641,  leaving  the  date  1647  to  api)ly 
to  the  other  subject  respecting  ownership  in  coves,  etc.,  about  salt 
water.  See  an  interesting  work,  "  Remarks  on  the  Earlj*  Laws  of 
Massachusetts  Bay,"  by  Francis  C.  Gray.  8  Mass.  Hist.  Soc.  Coll. 
(3d  series),  191,  215.  This  work  contains,  probabh'  for  the  first  time 
in  print,  a  full  copy  of  the  "  Body  of  Liberties,"  which,  there  is  evi- 
dence to  beheve,  were  adopted  and  sanctioned  b}'  the  colonial  gov- 
ernment in  1641,  but  were  never  printed  entire  with  the  colon}'  laws, 
although  man}-  of  them  were  embodied  in  terms  in  particular  ordinances. 
But  the  date  is  quite  immaterial,  and  the  onl}-  purpose  of  making  this 
explanation  is  to  show  why  these  two  subjects,  separate  in  their  origin, 
were  so  connected  together  in  the  publication  of  the  colon}-  laws,  that  it 
seems  necessary  now  to  consider  them  together  as  one  act. 

The  whole  article,  as  it  stands  in  the  Ancient  Charters  and  in  the 
edition  of  the  colony  laws  of  1660,  is  as  follows  :  — 

"■  Sect.  2.  Every  inhabitant  who  is  an  householder  shall  have  free 
fishing  and  fowling  in  any  great  ponds,  bays,  coves,  and  rivers,  so  far 
as  the  sea  ebbs  and  flows  within  the  precincts  of  the  town  where  they 
dwell,  unless  the  freemen  of  the  same  town,  or  the  General  Court,  have 
otherwise  appropriated  them  :  provided,  that  no  town  shall  appropriate 
to  any  particular  person  or  persons,  any  great  pond,  containing  more 
than  ten  acres  of  land,  and  that  no  man  shall  come  upon  another's 
propriety  without  their  leave,  otherwise  than  as  hereafter  expressed. 

"  The  which  clearly  to  determine  ;  Sect.  3.  It  is  declared,  that  in  all 
creeks,  coves,  and  other  plaoes  about  and  upon  sa  1 1  water,  where  the 
sea  ebbs  and  flows,  the  proprietor,  or  the  land  adjoining  shall  have 
propriety  to  the  low  water-mark,  where  the  sea  doth  not  ebb  above  a 
hundred  rods,  and  not  more  wheresoever  it  ebbs  further:  provided,  tliat 
such  proprietor  shall  not  by  this  liberty  have  power  to  stop  or  hinder 
the  passage  of  boats  or  other  vessels,  in  or  through  any  sea,  creeks, 
or  coves,  to  other  men's  houses  or  lands. 

"  Sect.  4.  And  for  great  ponds  lying  in  common,  though  within  the 
bounds  of  some  town,  it  shall  be  free  for  any  man  to  fish  and  fowl 
there,  and  may  pass  and  repass  on  foot  through  any  man's  propriety 
for  that  end,  so  they  trespass  not  upon  any  man's  corn  or  meadow. 
[1641,  47.]"  ...  .  . 

We  have  thought  it  proper  to  examine,  with  some  care,  the  founda- 
tion, on  which  the  right  of  property  in  land,  situated  between  high  and 


CHAP,  v.]  COMMO:^ WEALTH   V.    ALGER.  697 

low  water-mark  in  Massachusetts,  rests,  though  it  has  not  been  much 
contested  in  reference  to  these  harbor  lines,  except  indirectly,  and  in 
vague  and  general  terms.  And  we  think  it  is  entirely  clear  that,  since 
the  adoption  of  the  colony  ordinance,  every  grant  oF  land,  bounding 
upon  tlie  sea,  or  any  creek,  cove,  or  arm  of  the  sea,  and  either  in 
terms  including  flats  to  low  water-mark,  or  bounding  the  land  granted 
on  the  sea  or  salt  w^ater,  with  no  terms  limiting  or  restraining  the  oper- 
ation of  the  grant,  and  where  the  land  and  flats  have  not  been  severed 
by  any  intervening  conveyance,  has  had  the  legal  effect  to  pass  an 
estate  in  fee  to  the  grantee,  subject  to  a  limited  right  of  way  for  boats 
and  vessels.  We  have  seen  that  the  entire  right  of  property  in  the  soil 
was  granted  b}-  the  charter  to  the  colonists,  with  a  full  power  of  dis- 
posal, and  that  the  colonial  government  was  clothed  with  so  much  of 
the  royal  prerogative  and  power,  as  was  necessary  to  maintain  ancl 
regulate  all  public  rights  and  immunities  in  the  same.  If  land  so 
situated  had,  previously  to  the  ordinance,  been  conve3'ed  b}-  the  govern- 
ment, to  companies  of  proprietors  or  individuals,  the  Act  was  in  the 
nature  of  a  grant  of  the  flats  to  such  prior  grantees.  It  is  said  that  it 
was  not  of  itself  a  grant,  but  a  general  law  affecting  the  character  of 
propert}'.  Be  it  so.  It  was  au  authoritative  declaration  of  owners, 
having  a  full  right  of  property  and  power  of  disposal,  annexing  addi- 
tional land  to  that  previously  granted,  to  hold  in  fee,  subject  to  a 
reserved  easement ;  and,  if  not  strictly  a  grant,  it  partook  of  most  of 
the  characteristics  of  a  grant,  and  could  not  be  revoked  by  the  power 
that  gave  it.  In  regard  to  all  grants  made  by  the  government  after  the 
ordinance,  the  terms  of  the  grant,  bounding  the  lands  granted  upon  the 
sea,  or  arm  of  the  sea,  or  places  where  the  tide  ebbed  and  flowed,  would, 
ex  vi  termini,  carr}'  a  fee  to  low  water-mark,  or  one  hundred  rods  ;  so 
that  in  one  or  the  other  alternative,  this  ordinance  must  govern  and 
control  the  shore  rights  of  riparian  proprietors  in  ever}-  part  of  the 
Commonwealth. 

II.  Assuming,  then,  that  the  defendant  was  owner  in  fee  of  the  soil 
and  flats  upon  which  the  wharf  in  question  was  built,  it  becomes  neces- 
sary to  inquire  whether  it  was  competent  for  the  legislature  to  pass  the 
Acts  establishing  the  harbor  lines,  and  what  is  the  legal  validit}'  and 
effect  of  those  Acts.   .  .   . 

Tlie  manifest  object  of  these  statutes  is  to  prevent  injurious  obstruc- 
tions in  the  harbor  of  Boston,  and  to  secure  the  free,  common,  and 
unobstructed  use  thereof,  for  the  citizens  of  the  Commonwealth,  and 
all  other  persons,  for  navigation  with  ships,  boats,  and  vessels  of  all 
kinds,  as  a  common  and  public  right.  If  this  can  be  done,  without  an 
unwarrantable  encroachment  on  the  rights  of  private  propert}*,  it  is  an 
object  of  great  importance,  and  one  in  which  the  holders  of  riparian 
rights,  as  well  as  all  other  holders  of  real  estate,  and  the  whole  com- 
munity, have  a  deep  and  abiding  interest. 

We  think  it  is  a  settled  princiijle,  growing  out  of  the  nature  of  well' 
ordered  civil  society,  that  every  holder  of  property,  however  absolute 


098  COMMONWEALTH   V.    ALGER.  [CHAr.  V. 

n.n<1  uiiqiinlified  inny  be  his  title,  lioUls  it  under  the  implied  liability 
that  his  use  of  it  mav  be  so  reuulated,  that  it  shall  not  be  injurious  to 
t.lie  equal  enjoyment  of  others,  having  an  equal  right  to  the  enjoyment 
of  their  property,  nor  injurious  to  the  riuhts  of  the  community.  (AUl 
propert}-  in  this  Commonwealth,  as  well  that  in  the  interior  as  that 
bordering  on  tide-waters,  is  deriA-ed  directly  or  indirectly  from  the  gov-|{2( 
ernment,  and  held  subject  to  those  general  regulations  which  are  neces-   ^ 
sar}'  to  the  common  good  and  general  welfare.^ Rights  of  proijcrty,  like  '-^ 
all  other  social  and  conventional  rights,  are  subject  to  sucli  reasonal)]e 
limitations  in  their  enjoyment,  as  shall  prevent  them  from  being  inju-  y^'' 
rious,  and  to  such  reasonable  restraints  and  regulations  established  bv  \<\ 


a  government  to  take  and  appropriate  private  property  to  public  use 
whenever  the  public   exigency  requu-es   it ;    which  can   be  done  only 


on  condition  of  providing  a  reasonable  compensation  therefor.  The 
power  w^e  allude  to  is  rather  the  police  power,  the  power  vested  in  the 
legislature  by  the  Constitution,  to  make,  ordain,  and  establish  all  man- 
ner  of  wholesome  and  reasonable  law^s,  statutes,  and  ordinances,  either 
with  penalties  or  without,  not  repugnant  to  the  Constitution,  as  thev 
shall  judge  to  be  for  the  good  and  welftire  of  the  Commouwealtli  and  of 


Mr 


$. 


the  subjects  of  the  same. 

It  is  much  easier  to  ijerceive  and  realize  the  existence  and  sources  of 
this  power,  than  to  mark  its  boundaries,  or  prescribe  limits  to  its  exer- 
cise. There  are  many  cases  in  which  such  a  power  is  .exercised  by  all 
well-ordered  governments,  and  where  its  fitness  is  so  obvious,  that  all 
well-regulated  minds  will  regard  it  as  reasonable.  Such  are  tlie  laws  to 
prohibit  the  use  of  warehouses  for  the  storage  of  gunpowder  near  habi- 
tations or  highways  ;  to  restrain  the  height  to  which  wooden  buildings 
may  be  erected  in  jjopulous  neighborhoods,  and  require  them  to  be 
covered  with  slate  or  other  incombustible  material ;  to  prohibit  build- 
ings from  being  used  for  hospitals  for  contagious  diseases,  or  for  the 
carrying  on  of  noxious  or  offensive  trades  ;  to  prohi])it  the  raising  of  a 
dam,  and  causing  stagnant  water  to  spread  over  meadows,  near  in- 
habited villages,  thereby  raising  noxious  exhalations,  injurious  to  health  \  \ 
and  dangerous  to  life.  X 

Nor  does  the  prohibition  of  such  noxious  use  of  property,  a  prohibi-  J-)^^ 

tion  imposed  because  such  use  would  be  injurious  to  the  public,  although        ^ 
it  may  diminish  the  profits  of  the  owner,  make  it  an  appropriation  to  a  ,  ^        ^^ 
public  use,  so  as  to  entitle  the  owner  to  compensation.     If  the  owner  of\\l 
a  vacant  lot  m  the  midst  of  a  city  could  erect  thereon  a  great  wooden  /\  ^\ 
building,  and  cover  it  with  shingles,  he  might  obtain  a  larger  profit  of 
his  land,  than  if  obliged  to  build  of  stone  or  brick,  with  a  slated  roof. 
If  the  owner  of  a  warehouse  in  a  cluster  of  other  buildings  could  store 
quantities  of  gunpowder  in  it  for  himself  and  others,  he  might  be  saved 
the  great  expense  of  transportation.    If  a  landlord  could  let  his  building 


CHAP,  v.]  COMMONWEALTH   V.    ALGER.  699 

for  a  small-pox  hospital,  or  a  slaiigliter-liouse,  he  might  obtain  an  in- 
creased rent.  But  he  is  restrained  ;  not  because  the  public  have  occa- 
sion to  make  the  like  nse,  or  to  make  any  use  of  the  prouerty,  or  to 
take  any  benefit  or  j^rofit  to  themselves  from  it :  but  because  it  would 
be  a  noxious  use,  contrai-y  to  the  maxim,  Sic  utere  tuo,  lit  aliemon  noti 
Icedas.  It  is  not  an  approijriation  of  the  urouerty  to  a  public  use,  but 
the  restraint  of  an  injurious  private  use  by  the  owner,  and  is  therefore 
not  witliin  the  principle  of  i)roperty  taken  under  the  right  of  eminent 
^domam.  The  distinction,  w^e  think,  is  manifest  in  principle,  although 
the  facts  and  circumstances  of  different  cases  are  so  various,  that  it  is 
often  difficult  to  decide  whether  a  particular  exercise  of  legislation  is 
properly  attributable  to  the  one  or  the  other  of  these  two  acknowledged 
powers. 

These  principles  were  somewhat  discussed,  and  similar  view-s  were 
substantially  adopted,  in  the  case  of  Commonwealth  v.  TeioJcsbury^  11 
Met.  55.  Perhaps  the  facts  in  that  case  were  imperfectly  stated,  or 
some  of  the  positions  and  illustrations  were  expressed  in  too  broad  and 
unqualified  a  manner  ;  but  we  are  of  opinion  that  the  principle  on  which 
that  judgment  proceeded  was  correct.      I.t  assumes  that  all  real  estate,! 


inland  or  on  the  sea-shore,  derived  immediately  or  remotely  from  the 
government  of  the  State,  is  taken  and  held  under  the  tacit  understand-l 
ing  that  the  owner  shall  so  deal  with  it  as  not  to  cause  injury  to  others  ;■ 
that  when  land  is  so  situated, ^or  such  is  its  conformation,  that  it  forms! 
a  natural  barrier  to  rivers  or  tidal  watercourses,  the  owner  cannot  justi-l 
^ably  remove  it,  to  such  an  extent  as  to  permit  the  waters  to  deserti 


their  natural  channels,  and  overflow,  and  jjcrhaps  inundate  fields  and  vil- 
lages, render  rivers,  ports,  and  harbors  shallow,  and  consequently  deso-^j 
late,  and  thereby  destroy  the  valuable  rights  of  other  |jroi)rietors,  both  in\ 
the  navigation  of  the  stream,  and  in  the  contiguous  lands.  It  expresses^ 
nearl}'  the  same  legal  truth,  which  is  expressed  in  the  familiar  maxim, 
that  no  owner,  through  whose  land  a  natural  watercourse  runs,  can 
lawfully  divert  it  to  the  damage  of  others.  But  what  is  the  diversion  of 
a  watercourse?  Ordinarily,  and  when  no  such  circumstances  exist,  the 
owner  of  land  has  a  perfect  right  to  use  and  remove  the  earth,  gravel, 
and  clay  of  which  the  soil  is  composed,  as  his  own  interest  or  conve- 
nience may  require.  But  can  he  do  this  when  the  same  materials  form 
the  natural  embankment  of  a  watercourse?  He  maj'  say,  perhaps,  that 
he  merely  intends  to  make  use  of  materials  which  are  his  own,  and  to 
which  he  has  a  right,  and  for  which  he  has  other  uses.  But  we  think 
the  law  will  admit  of  no  such  excuse  ;  he  knows  that,  when  these  mate- 
rials are  removed,  the  water,  by  the  law  of  gravitation,  wall  rush  out, 

1  In  this  case  it  was  held,  in  1846,  that  a  statute  of  Massachusetts  of  1845,  imposing 
a  penalty  for  rsmoving  stones,  gravel,  or  sand  from  any  beach  in  the  town  of  Chelsea, 
was  passed  for  the  purpose  of  protecting  the  harbor  of  Boston,  that  it  applied  to  the 
owner  of  the  beach  as  well  as  others,  and  that  it  was  not  a  taking  of  property  for  pub- 
lic use,  within  the  meaning  of  the  Constitution,  but  a  legitimate  exercise  of  legislative 
power. — Ed. 


700  COMMONWEALTH   V.    ALGER.  [clIAP.  V. 

and  all  the  mischievous  consequences  of  diverting  the  watercourse  will 
follow.  lie  must  be  presumed  to  have  intended  all  the  necessary'  and 
natural  consequences  ol'  his  own  acts ;  of  course,  that  he  intended,  by 
those  acts,  to  divert  the  w'atercourse  ;  and  the  law  holds  him  responsible 
for  them  accordingly.  Principles  are  tested  bv  taking  extreme  cases. 
Take  the  case  of  tiie  river  Mississippi,  where  large  tracts  of  country, 
with  cities  and  villages,  depend  for  their  protection  upon  the  natural 
river-bank,  which  is  private  property.  Perliaps,  under  such  circum- 
stances, it  might  not  be  too  much  to  say,  not  only  that  the  ow^ner  can- 
not do  any  positive  act  towards  removing  the  embankment,  but  that  he 
may  properly  be  held  responsible  for  the  permissive  waste  of  it,  by 
negligence  and  inattention.  And  the  other  cases  hereinbefore  stated, 
though  very  different  in  their  facts,  are  similar  in  ])rincii)le,  all  being 
cases  in  which  tlie  specific  use  prohibited,  is  so  prohibited  because  jt 
would  be  noxious,  and  cause  or  threaten  damage  to  the  lives,  health, 
comfort,  or  property  of  other  members  of  the  community,  equally  en- 
titled to  protection.  We  think,  therefore,  that  that  case  w^as  rightly 
decided.. 

Supposing  the  principle  itself  to  be  well  established,  the  great  question     rj 
then  IS,  whether  the  Act  in  question,  fixing  certain  harbor  lines,  was  r , , 
within  it ;  and  we  are  of  opinion  that  it  is,  although  it  may  in  some^ 
cases  seem  to  trench  somewhat  largely  on  the  profitable  use  of  indi- 
vidual property.     This  opinion  is  founded  on  several  considerations. 

We  have  already  alluded  to  the  point,  that  a  particular  use  of  land,  as 
well  inland  as  on  the  sea-shore,  which,  in  one  situation,  would  be  greatl}' 
injurious  to  common  and  public  rights,  in  another  position  would  be 
wholly  harmless.  (A  man  having  a  hill  of  gravel  on  his  farm,  not  con- 
stituting the  embankment  of  a  stream,  ma}'  remove  the  earth  at  his 
pleasure,  because  sucli  use  can  injure  no  one  ;  when  under  other  cir- 
cumstances, it  would  be  greatly  injuriouSj/'  Whether  any  restraint  upon 
the  use  of  land  is  necessary  to  the  preservation  of  common  riglits  and 
the  public  securi ty ,  must  depend  upon  circumstances,  to  be  judged  of 
by  those  to  whom  all  legislative  power  is  intrusted  by  the  sovereign 
authority  of  the  State,  so  to  declare  and  regulate  as  to  secure  and 
preserve  all  public  rights. 

We  think  it  is  a  consideration  entitled  to  some  weight,  that  the  colony 
ordinance  itself,  which  changed  the  tenure  and  extended  the  title  of 
riparian  proprietors  to  low  water-mark,  so  as  to  include  the  shore,  was 
not  absolute  and  unqualified.  It  contained  a  reservation,  to  the  effect 
that  riparian  proprietors  should  not,  by  this  extension  of  their  territorial 
limits,  have  power  to  stop  or  hinder  the  passage  of  boats  and  vessels,  in 
or  through  any  sea,  creeks,  or  coves,  to  other  men's  houses  or  lands. 
From  these  very  general  words,  it  is  certainly  difficult  to  prescribe 
exact  limits  to  this  reservation.  That  it  was  designed  to  impose  some 
restriction  in  favor  of  the  right  of  navigation  is  quite  clear.  To  say,  as 
it  has  sometimes  been  contended,  that  the  reservation  was  intended 
to  prohibit  any  restraint  upon  the  pre-existing  right  of  navigation,  and 


CHAP,  v.]  COMMONWEALTH   V.   ALGEll.  701 

that  all  persons  should  have  the  same  right  of  passing  over  it,  with 
boats  and  vessels,  as  they  had  before,  would  seem  to  restrain  any  build- 
ing thereon,  and  to  render  the  Act  nugatory  and  of  no  practical  effect. 
Besides,  if  tlie  piu'pose  was,  as  it  has  often  been  declared  to  be,  to 
enable  proprietors  bounding  on  the  shore  to  erect  and  build  quays, 
wharves,  and  warehouses  thereon,  for  purposes  incident  to  the  great 
interests  of  commerce  and  navigation,  such  a  construction  of  the  Act 
would  defeat  the  purposes  for  which  it  was  designed. 

Again,  the  construction  which  has  been  put  upon  this  Act,  in  all  the 
judicial  decisions  which  have  been  made  upon  it,  man}-  of  which  ;ire 
cited  in  the  former  part  of  this  opinion,  has  been,  that,  notwithstanding 
the  Act  vests  a  fee  in  the  soil  in  the  riparian  proprietor,  analogous  to 
the  jus  privatum^  or  right  of  propert}',  which  at  the  common  law  the 
Crown  could  grant  to  a  subject,  yet  that  the  land  between  high  water 
and  low  water,  until  it  was  enclosed,  built  upon,  or  so  occupied  by  the 
riparian  proprietor,  so  far  partook  of  its  original  character,  that  whilst 
covered  by  the  tide-water  the  public  and  all  persons  might  lawfully  use 
it,  might  sail  over  it,  anchor  upon  it,  fish  upon  it,  and  b}'  so  doing  no  per- 
son should  be  held  to  commit  a  trespass,  or  disseise  the  owner,  or  take 
adverse  possession.  The  public  used  only  a  common  right,  by  so  using 
these  lands  when  covered  with  tide-water. 

In  putting  a  construction  upon  any  statute,  every  part  shall  be  re- 
garded, and  it  shall  be  so  expounded,  if  practicable,  as  to  give  some 
effect  to  every  part  of  it.  Looking  at  the  terms  of  this  law,  and  the 
purposes  for  which  it  was  intended,  the  object  seems  to  have  been,  to 
secure  to  riparian  proprietors  in  general,  without  special  grant,  a  prop- 
ert}'  in  the  land,  with  full  power  to  erect  such  wharves,  embankments, 
and  warehouses  thereon,  as  would  be  usually  required  for  purposes  of 
commerce,  subordinate  only  to  a  reasonable  use  of  the  same,  by  other 
individual  riparian  proprietors  and  the  public,  for  the  j^urposes  of 
navigation,  through  any  sea,  creeks,  or  coves,  with  their  boats  and 
vessels.   .   .   . 

But  the  use  which  we  tliink  ma}-  be  justl}'  made  of  these  principles, 
and  of  these  views  of  the  law  of  England,  as  it  had  existed  long  anterior 
to  the  emigration  of  our  ancestors  to  America,  is  this :  The}^  had  been 
accustomed  to  regard  the  use  of  the  sea-shores,  for  navigation  and  fish- 
ing, as  puhlici  Juris,  to  be  held  and  regulated  for  the  common  and 
general  benefit ;  and  this,  although  in  many  cases  the  right  of  soil  was 
vested  by  private  grant  in  an  individual.  Tlie^'  had  long  been  familiar 
with  the  practice  of  the  Crown  to  make  grants  of  the  Jus  ^^rivattcvi,  or 
right  of  property  in  the  soil,  in  the  sea-shore  over  which  the  tide  ebbed 
and  flowed,  which  would  warrant  the  grantee  of  the  Crown  in  erecting 
thereon  wharves,  quad's,  and  warehouses,  for  facilitating  navigation  and 
commerce,  provided  such  erections  did  not  hinder  or  obstruct  naviga- 
tion, or  become  a  nuisance.  If  such  a  wharf  or  other  erection  were 
such  as  to  interfere  essentially''  with  the  common  right  of  navigation,  it 
would  be  held  by  the  common  law  to  be  a  common  nuisance,  and  could 


702  COMMONWEALTH  V.   ALGER.  [CHAP.  V. 

not  be  justified,  even  by  the  king's  grant,  unless  sanctioned  b}'  an  Act 
of  Parliament.  These  rules  and  practices  were  familiar  to  the  minds  of 
our  English  ancestors  at  their  emigration,  and  we  ma^'  presume  that  the 
colonial  government  had  them  in  view  when,  by  a  general  Act,  it  an- 
nexed the  sea-shore  to  the  upland,  and  made  it  the  private  propeity 
of  the  riparian  proprietor.  It  must  have  well  understood  that  all 
estate  granted  by  the  government  to  individuals  is  subject,  bj'  reason- 
able implication,  to  such  restraints  in  its  use,  as  shall  make  the  enjoy- 
ment of  it  by  the  grantee  consistent  with  the  equal  enjoyment  by  others, 
of  ^heir  several  and  common  rights.  When  therefore  the  government 
did,  b}'  such  general  Act,  grant  a  right  of  separate  property  in  the  soil 
of  the  sea-shore,  to  enable  the  riparian  proprietor  to  erect  quays  and 
wharves  for  a  better  access  to  the  sea,  and  by  the  same  Act  reserved 
some  right  to  individuals  and  the  public  of  passing  and  repassing  with 
vessels,  but  without  defining  it,  it  seems  just  and  reasonable  to  construe 
such  reservation  much  more  liberallj-  in  favor  of  the  right  reserved, 
than  it  otherwise  would  be  under  other  circumstances. 

And  so  in  the  exercise  of  the  more  general  power  of  government,  so 
to  restrain  the  injurious  use  of  propert}',  it  seems  to  apply  more  sig- 
nificantly and  more  directly  to  real  estate  thus  situated  on  the  sea-shore, 
separating  the  upland  from  the  sea,  to  which  the  pul)lic  have  a  common 
and  acknowledged  right,  so  that  such  estate  should  be  held  subject  to 
somewhat  more  restrictive  regulations  in  its  use,  than  interior  and  up- 
land estate  remote  from  places  in  which  the  public  have  a  common 
right.  The  circumstances  are  different.  In  respect  to  land  Iving:  in 
the  interior,  and  used  for  agricultural  purposes,  there  is  little  occasion 
to  impose  any  restraint  u|)on  the  absolute  dominion  of  the  owner,  be- 
cause  such  restraint  is  not  necessary  to  prevent  it  from  being  injurious. 
But  the  circumstances  are  entirely  different  in  regard  to  the  sea-shore, 
which  lies  between  th^  sea,  admitted  to  be  common  to  all,  and  the  use 
of  which  is  of  vast  importance  to  the  public,  and  ports  and  i)laces, 
without  access  to  which,  the  use  of  the  sea  for  navigation  would  be 
of  little  value. 

Considering,  therefore,  that  all  real  estate  derived  from  jhe  govern- 
ment  is  subject  to  some  restraint  for  the  general  good,  whether  s u ch 
restraint  be  regarded  as  a  police  regulation  or  of  any  other  character ; 
considering  that  sea-shore  estate,  though  held  in  fee  by  the  riparian 
proprietor,  both  on  account  of  the  qualified  reservation  under  which 
the  gran t  was  made,  and  the  peculiar  nature  and  character,  position , 
and  relations  of  the  estate,  and  the  great  public  interests  associated 
with  it,  is  more  especially  subject  to  some  reasonable  restraints,  in 
o rder  that  the  exercise  of  full  dominion  over  it,  by  the  proprietor,  may 
not  be  noxious  to  others,  and  injurious  to  the  public,  the  court  are  of 
opinion  that  the  legislature  has  power,  by  a  general  law  affecting  all 
riparian  proprietors  on  the  same  line  of  shore  equally  and  alike,   to 


make  reasonable  regulations,  declaring  the  public  rigiit,  and  provid- 


ing; for  its  preservation  by  reasonable  restraints,  and  to  enforce  these 


restraints  by  suitable  penalties. 


CHAP,  v.]  COMMONWEALTH    V.    ALGER.  703 

Wherever  there  is  a  general  riuht  on  the  part  of  the  public,  and  a 
general  duty  on  the  part  of  a  land-owner,  or  any  other  i)erson,  to  respect 
such  right,  we  think  it  is  competent  for  the  legislature,  by  a  specific 
enactment,  to  prescribe  a  i:)recise,  practical  rule  for  declaring,  establish- 
ing, and  securin*;:  such  right,  and  enforcing-  respect  for  it.  It  may  be 
said  in  general  terms,  independently  of  any  positive  enactment,  that  it 
is  the  right  of  society,  in  the  midst  of  a  populous  settlement,  to  be 
exempt  from  the  proximity  of  dangerous  and  noxious  trades  ;  and  that 
it  is  the  duty  of  the  owner  of  real  estate,  in  the  midst  of  many  habita- 
tions, to  abstain  from  erecting  buildings  thereon,  or  otherwise  using  it, 
for  carrying  on  a  trade  dangerous  to  the  lives,  health,  or  comfort  of 
the  inhabitants  of  such  dwellings  ;  althougli  a  trade  in  itself  useful  and 
beneficial  to  the  public.  But  such  general  dut}'  and  obligation  not 
being  fixed  b}'  a  rule  precise  enough  for  practical  purposes,  we  think  it 
is  competent  for  the  legislature  to  interpose,  and  by  a  specific  enactment 
to  declare  what  shall  be  deemed  a  dangerous  or  noxious  trade,  under 
what  circumstances  and  within  what  distance  of  habitations  it  may  or 
shall  not  be  set  up,  how  the  use  of  it  shall  be  regulated,  and  to  prohibit 
any  other  than  such  regulated  use,  by  specific  penalties. 

This  principle  of  legislation  is  of  great  importance  and  extensive  use, 
and  lies  at  the  foundation  of  most  enactments  of  positive  law,  which  de- 
fine and  punish  mala  jirohibita.  Things  done  may  or  may  not  be  wrong 
in  themselves,  or  necessarily  injurious  and  punishable  as  such  at  com  - 
mon  law  ;  but  laws  are  passed  declaring  them  offences,  and  making 
them  punishable,  because  they  tend  to  injurious  consequences  ;  but 
more  especially,  for  the  sake  of  havins:  a  definite,  known,  and  authori- 
tative rule  which  all  can  understand  and  obey.  In  the  case  already 
put,  of  erecting  a  powder  magazine  or  slaughter-house,  it  v/ould  be 
indictable  at  common  law,  and  punishable  as  a  nuisance,  if  in  fact 
erected  so  near  an  inhabited  village  as  to  be  actually  dangerous  or 
noxious  to  life  or  health.  \Yithout  a  positive  law,  everybody  might 
agree  that  two  hundred  feet  would  be  too  near,  and  that  two  thousand 
feet  would  not  be  too  near ;  but  within  this  wide  margin,  who  shall 
say.^who  can»know,  what  distance  shall  be  too  near  or  otherwise?  An 
alithoritative  rule,  carrying  with  it  the  character  of  certainty  and  preci- 
sion, is  needed.  ^The  tradesman  needs  to  know,  before  incurring  ex- 
ID^nse,  how  near  he  maj'  build  his  works  without  violating  the  law  or 
cbmraitting  a  nuisance  ;  builders  of  houses  need  to  know,  to  what  dis- 
tance they  must  keep  from  the  obnoxious  works  already  erected,  in 
cfi-der  to  be  sure  of  the  protection  of  the  law  for  their  habitations^ 
This  requisite  certainty  and  precision  can  only  be  obtained  b^-  a  positive 
enactment,  fixing  the  distance,  within  which  the  use  shall  be  prohibited 
as  noxious,  and  beyond  which  it  will  be  allowed,  and  enforcing  the  rule 
thus  fixed,  by  penalties. 

Many  cases  will  suggest  themselves,  where  the  legislature  interposes 
b}'  statute  to  declare,  protect,  and  regulate  public  rights,  although  those 
rights  are  public  easements  only,  over  lands  of  which  the  fee  of  the  soil 


704  COMMONWEALTH   V.    ALGER.  [CIIAP.  Y, 

is  ill  private  proprietors.  Siicli  are  laws  regulating  the  construction  and 
repairs  of  roads,  liigbwa3-s,  and  bridges ;  declaring  how  tlie^'  shall  be 
graded,  what  barriers  shall  be  erected  to  guard  travellers  against  dan- 
gerous places,  and  what  obstructions  shall  be  removed.  .  .  . 

But  in  reference  to  the  present  case,  and  to  the  Act  of  the  Legislature, 


establishing"  lines  in  the  harbor,  beyond  which  private  proprietors  are     J'  k    ry 
prohibited  from  building  Avharves.  it  is  urged  that  such  a  restraint  upon/^o.     (^ 


the  estate  of  an  individual,  debarring  him  to  some  extent  from  the  mostr ) 
beneficial  use  of  it,  is  in  effect  taking  his  estate.    If  such  restraint  were.  ^        ^^ 


r. 


iu  fact  imposed  upon  the  estate  of  one  proi^rietor  only,  out  of  several 
estates  on  the  same  line  of  shore,  the  objection  would  be  much  more 
formidable.      But  we  are  to  consider  the  subject-matter,  to  which  such 
restraint  applies.     The  value  of  this  species  of  estate,  that  of  shore  and 
flats,  consists  mainly  in  the  means  it  affords  of  building  wharves  from 
the  upland  towards  deep  water,  to  place  merchandise  and  build  wharves 
upon,  and  principally  to  afford  access,  to  vessels  requiring  considerable 
depth  of  water,  from  the  sea  to  suitable  landings.     Now,  if  along  a 
shore  where  there  are  flats  of  considerable  extent,  one  were  restrained 
to  a  certain  lejigth,  whilst  others  were  allowed  to  extend  further,  the 
damage  might  be  great.     So  if  one  were  allowed  to  extend,  and  the 
coterminous  proprietors  adjacent  w^ere  restrained,  it  would  be  obviously 
more  injurious.     The  one  extended  would  stop  or  check  the  current      'V)\,  j^ 
along  the  others,  cause  mud  to  accumulate  near  them,  and  thus  render      ^    v^ 
the  water  shoal  at  those  w^harvcs.      But  whei^  all  are  permitted  to  ex- 
tend alike,  and  all  are  restraine(l_alike,  by  a  line  judiciously  adapted  to 
the  course  of  the  current,  so  that  all  have  the  benefit  of  access  to  tlieirp^    \ 
wharves,  with  the  same  depth  of  water,  and  the  same  strength  of  current     ^^\ 
at  their  heads,  the  damage  must  be  comparatively  less.  " 

But  of  this  the  legislature  must  iudge.  Having  once  come  to  the 
conclusion  that  a  case  exists,  in  which  it  is  competent  for  the  legisla- 
ture to  make  a  law  on  the  subject,  it  is  for  them,  under  a  high  sense  of 
duty  to  the  public  and  to  individuals,  with  a  sacred  regard  to  the  I'ights 
pf  ))roperty  and  all  other  private  rights,  to  make  such  reasonable  reg- 
ulations as  they  may  judge  necessary  to  protect  public  and  private 
rights,  and  to  impose  no  larger  restraints  upon  the  use  and  enjoyment 
of  private  property,  than  are  in  their  judgment  strictly  necessary  to 
preserve  and  protect  the  rights  of  others. 

In  regard  to  the  case  of  Mr.  Alger,  the  report  states  that  a  certain 
piece  of  wharf,  called  a  triangular  piece,  was  erected  and  placed  in  its 
position  beyond  the  line,  after  the  law  fixing  the  line  had  been  passed  ; 
but  that  some  other  portions,  though  actually  beyond  the  line,  were 
erected,  and  the  obstructions  complained  of  actuall}-  placed  in  their 
position,  before  the  law  was  passed  ;  and  also  that  the  wharf  complained 
of  does  not  obstruct  the  navigation  of  boats  and  vessels. 

Ill  regard  to  the  first  suggestion,  it  may  be  necessary  to  examine  the 
facts  more  minutely  before  any  final  judgment  is  entered.  If  anv  por- 
tion of  this  erection,  described  in  the  indictment,  had  been  actually  made 


CHAP,  v.]  COMMONWEALTH   V.    ALGEE.  705 

and  i)laced  in  its  position  before  the  Act  mxs  passed,  the  court  are  all  of 
opinion  that  the  owner  is  not  liable  to  its  penalties.  These  laws  were 
future  and  prospective  in  their  terms  and  in  their  operation.  They  pro- 
ceed on  the  assumption,  that  before  they  were  passed,  every  man  had  a 
right  to  build  on  his  own  flats,  if  the  erection  did  not  in  fixct  operate  to 
impede  navigation,  and  render  him  indictable  as  at  common  law  ;  and 
that  the  common  law,  in  thus  lending  its  aid  in  the  prosecution  of  actual 
injuries  to  navigation,  to  be  proved  in  each  case  as  nuisances,  would  be 
sufficient  to  secure  the  public  against  encroachments  without  legislation. 
But,  for  the  reasons  hereinbefore  given,  it  seems  to  us  highly  important 
to  have  a  more  precise  and  definite  law  made  and  promulgated,  by  which 
all  persons  may  more  certainly  know  their  own  and  the  public  rights,  and 
govern  themselves  accordingly. 

If.  indeed,  before  the  passing  of  these  laws,  any  one  had  so  built  into 

navigable  water  as  to  cause  a  public  nuisance,  he  may  be  liable  to  in- 

^ y      dictment  and  punishment,  but  not  by  these  laws,  fixiuo-  harbor  lines. 

/It  follows,  therefore,  that  all  persons  w^ho  built  on  their  own  soil  before 
these  laws,  in  a  manner  not  amounting  to  a  public  nuisance,  indepen- 
,y     dently  of  them,  had  exercised  only  their  Jiist  and  lawful  right;  and  any 
(^       laws,  made  to  punish  acts  Jawful  at  the  time  they  w^ere  done,  would  be 
S>    \^  ex  post  facto,  contrary  to  the  Constitution  and  to  the  plainest  i)rinciples 
^    ^      of  Justice,  and  of  course  inoperative  and  void. 

^,1^  In  regard  to  the  other  suggestion,  that  it  is  found  b^'  the  case  that  the 

particular  wharf  of  Mr.  Alger  did  not  obstruct  or  impede  navigation,  it 
^s  proper  to  sa}*,  that  if  we  are  right  in  principle,  we  are  bound  to  hold 
^  vj/  that  this  circumstance  can  afford  no  defence.     A  consideration  of  this 
'  ■         fact  illustrates  the  principles  we  have  been  discussing.      The  reason 
why  it  is  necessary  to  have  a  certain  and  authoritative  law,  is  shown  by 
l^"*       the  difficulty,  not  to  sav  impracticability^  of  ingnirino-  and  de(;idino-  ns  a 
,  ,    fact,  in  each  particular  case,  whether  a  certain  erection  in  tide-water  is 
tT       a  nuisance  at  common  law  or  not ;  and  when  ascertained  and  adjudged, 
it  affords  no  rule  for  any  other  case,  and  can  have  little  effect  in  main- 
taining and  protecting  the  acknowledged  public  right.     It  is  this  con- 
sideration (the  expediency  and  necessity  of  dpfining  and  securing  the 
rights  of  the  public),  which  creates  the  exigency,  and   furnishes  the 
legislature  with  the    authority  to  make   a  general  and   precise  law : 
but  when  made,  because  it  was  just  and  expedient,  and  because  it  is 
law,  it  becomes  the  duty  of  every  person  to  obey  it  and  comply  witli 
it      The  question   under   the    statute   therefore  is.   not  whether  .iny 
wharf,  built  after  the  statute  was  made  and  promulgated,  was  an  actual 
obstruction  to  navigation,   but  whether  it  w^as  within  the  prohibited 
luTiiJ. 

On  the  whole,  the  court  are  of  opinion  that  the  Act  fixing  a  line 
within  the  harbor  of  Boston,  beyond  which  no  riparian  proprietor 
should  erect  a  wharf  or  other  permanent  structure,  although  to  some 
extent  it  prohibited  him  from  building  such  structure  on  flats  of  which 
he  owned  the  fee,  was  a  constitutional  law,  and  one  which  it  was  com; 
VOL.  I.  — 45  ~     """"*  ~ 


V 


706  THORPE   V.   RUTLAND,   ETC.   RAILROAD   CO.  [cHAP.  V. 

petent  for  the  legislature  to  make  ;  that  it  was  binding  on  the  defend- 
ant, und  rendered  him  obuoxious  to  its  penalties,  if  he  violated  its 
provisions.^ 


\ 


THORPE  V.   RUTLAND   AND   BURLINGTON   RAILROAD 

COMPANY. 

Supreme  Court  of  Vermont.     1855.  A'O 

[27  Vt.  140.]  A 

J).  A.  Smalley^  for  the  defendants. 
^  J.  Maeck,  for  the  plaintiff. 

[For  the  statement  of  facts  and  the  beginning  of  the  opinion,  see  ante, 
p.  157.  The  statute  in  question  is  given  in  the  note.^  The  opinion  con- 
tinues as  follows  :] 

Redfield,  Ch.  J.   .   .   .  11.  It  being  assumed  then,  that  the  legisla- 
!^  _  ^  ,      ture  may  control  the  action,  prescribe  the  functions  and  duties  of  cor- 
-       X     '  f.  porations,   and  impose   restraints  upon  them   to  tlie  same  extent    as 
,  ,  upon  natural  persons,  that  is,  in  all  matters  coming  within  the  general 

-     range  of  legislative  authority,  subject  to  the  limitation  of  not  impair- 
ing the  obligation  of  contracts,  provided  the  essential  franchise  is  not 
-    4-a_,(iXa    taken  without  compensation,  it  becomes  of  primary  importance  to  deter- 
^  mine  the  extent  to  which  the  charter  of  a  corporation  may  fairly  be 

■^^^^  regarded  as  a  contract  within  the  meaning  of  the  United  States  Con- 

Ua  a..  -^^       stitution.  .   .  .   [Here  the  reasoning  in  the  case  of  Dartmouth  College 
■^  \  V.  Woodward^  4  Wheat.  518,  is  stated.] 

But  it  has  sometimes  been  supposed  that  corporations  possess  a  kind 
of  immunity  and  exemption  from  legislative  control,  extending  to 
everything  materially  affecting  their  interest,  and  where  there  is  no  ex- 
press reservation  in  their  charters.  It  was  upon  this  ground  that  a  per- 
petual exemption  from  taxation  was  claimed  in  Providence  Bank  v. 
Billings,  4  Peters,  514,  their  charter  being  general,  and  no  power  of 
taxation  reserved  to  the  State.  The  argument  was,  that  the  right  to 
tax  either  their  property  or  their  stock  was  not  only  an  abridgment  of 
the  beneficial  use  of  the  franchise,  but  if  it  existed,  was  capable  of  being 
so  exercised  as  virtually  to  destroy  it.  This  was  certainlj-  plausible, 
and  the  court  do  not  deny  the  liability  to  so  exercise  the  power  of  tax- 
ation as  to  absorb  the  entire  profits  of  the  institution.  But  still  they 
deny  the  exemption  claimed.     Chief  Justice  Marshall  there  says : 

1  Compare  Grand  Rapids  v.  Powers,  89  Mich.  94 ;  Summerville  v.  Presslei/,  33  So. 
Ca.  56  (1890)  ;  St.  Louis  v.  Hill,  22  S.  W.  Rep.  8G1  (1893).  —Ed. 

2  The  statute  is  as  follow.s:  "Each  railroad  corporation  shall  erect  and  maintain 
fences  on  the  lines  of  their  road,  .  .  .  and  also  construct  and  maintain  cattle-guards 
at  all  farm  and  road  crossings,  .•^nitalile  and  sufficient  to  prevent  cattle  and  animals 
from  getting  on  to  the  railroad.  Until  such  fences  and  cattle-guards  shall  be  duly 
made,  the  corporation  and  its  agents  shall  be  liable  for  all  damages  which  shall  be  done 
by  their  agents  or  engines  to  cattle,  horses,  or  other  animals  thereon,  if  occasioned  by 
want  of  such  fences  and  cattle-guards."  —  Comp.  Stat.  200,  §  41. 


CHAP,  v.]  THORPE   V.    EUTLAXD,    ETC.    RAILFtOAD   CO.  707 

"  Thp  gront  objent  of  an  incorporation  is,  to  bestow  the  character  and 
properties  of  indivicUialitv  on  a  C(jllected  and  changing  body  of  men . 
Any  privileges  which  may  exempt  it  from  the  burdens  common  to  indi- 
viduals, do  not  flow  necessarily  from  the  charter,  but  must  be  exijrcssed 
in  it,  or  they  do  not  exist.'' 

This  is  sufficiently  explicit,  and  upon  examination  will  be  found,  I 
think,  to  have  placed  the  matter  upon  its  true  basis.  In  reason,  it 
would  seem  that  no  fault  could  be  found  with  the  rule  here  laid  down  l)y 
the  great  expounder  of  American  constitutional  law.  As  to  the  general 
liability  to  legislative  control,  it  places  natural  persons  and  corporations 
preciigely  u|)on  the  same  ground.  And  it  is  the  true  ground,  and  the 
only  one  upon  which  equal  rights  and  just  liabilities  and  duties  can  be 
fairly  based. 

To  appl}'  this  rule  to  the  present  case,  it  must  be  conceded  that  all 
which  goes  to  the  constitution  of  the  corporation  and  its  beneficial  op- 
eration is  granted  b}'  the  legislature,  and  cannot  be  revoked,  either 
direct!}'  or  indirectly,  without  a  violation  of  the  grant,  which  is  regarded 
as  impairing  the  contract,  and  so  prohibited  Ijj-  the  United  States  Con- 
stitution. And  if  we  suppose  the  legislature  to  have  made  the  same 
grant  to  a  natural  person  which  the}' did  to  defendants,  which  the}'  may 
undoubtedly  do  (Moor  v.  Veazie,  32  Maine,  343  ;  s.  c.  in  error  in  the 
Sup.  Ct.  U.  S.,  4  Peters,  565),  it  would  scarcely  be  supposed  that  they 
thereby  parted  with  any  general  legislative  control  over  such  person, 
or  the  business  secured  to  him.  Such  a  supposition,  when  applied  to  a 
single  natural  person,  sounds  almost  absuid.  But  it  must,  in  fact,  be 
the  same  thing  when  applied  to  a  corporation,  however  extensive.  In 
eitlier  case,  the  privilege  of  running  the  road,  and  taking  tolls,  or  fare 
and  freight,  is  the  essential  franchise  conferred.  Anv  act  essentially 
paralyzing  this  franchise,  or  destroying  the  profits  therefrom  arising, 
would  no  doubt  be  void.  But  beyond  that,  the  entire  power  of  the 
legislative  control  resides  in  the  legislature,  unless  such  power  is  ex- 
pressly limited  in  the  grant  to  the  corporation,  as  by  exempting  their 
property  from  taxation,  in  consideration  of  a  share  of  the  profits,  or  a 
bonus,  or  the  public  duties  assumed.  And  it  has  been  questioned  how 
far  one  legislature  could,  in  this  manner,  abridge  the  general  power  of 
every  sovereignty  to  impose  taxes  to  defray  the  expense  of  public  func- 
tions. Breioster  v.  Hough.  10  New  Hamp.  138 ;  Mechanics'  and 
Traders'  Bank  v.  Debolt,  1  Ohio  St.  591  ;  Toledo  Bank  v.  Bond.,  Ibid., 
622.  It  seems  to  me  there  is  some  ground  to  question  the  right  of  the 
legislature  to  extinguish,  by  one  act,  this  essential  right  of  sovereignty. 
I  would  not  be  surprised  to  find  it  brought  into  general  doul)t.  But  at 
present  it  seems  to  be  pretty  generally  acquiesced  in.  State  of  JSfeio 
Jersey  v.  Wdson^  7  Cranch,  164  ;  reaffirmed  in  Gordon  v.  Appeal  Tax 
Court,  3  Howard,  133.  But  all  the  decisions  in  the  United  States  Su- 
preme Court,  allowing  the  legislature  to  grant  irrevocably  any  essential 
prerogative  of  sovereignty,  require  it  to  be  upon  consideration,  and  in 
the  case  of  corporations,  contemporaneous  with  the  creation  of  the  fran- 


"tvAje-^A-v 


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VW     W'tfv\^ 


<<.      vILtv.      \  \LX/~\ji       n>  "^-M-^    ""J-^a-n^, 


'2 


708 


THORPE    V.    RUTLAND,    KTC.    RAILROAD   CO.  [CHAP.  V. 


U^ 


iju 


id.  du 


clasp.  Richmoiul  H.  Co.  v.  77<e  Louisa  R.  Co.,  13  Howard,  71. 
Similar  decisions  in  regard  to  tlie  right  of  tlie  legislature  to  grant  per- 
petual exemption  from  taxation  to  corporations  and  propert}',  the  title 
to  which  is  derived  IVom  the  State,  have  been  made  by  this  court  {Iler- 
rick  V,  licmdolp/i,  13  Vt.  525) ;  and  in  some  of  the  other  States  {Landon 
V.  Litchfield,  11  Conn.  251,  and  cases  cited,  O'Boimell  v.  Bailey,  24 
Miss.  386).  But  these  cases  do  not  affect  to  justify  even  this  express 
exemption  from  taxation  being  held  inviolable,  except  upon  the  ground 
that  it  formed  a  part  of  tlie  value  of  the  grant,  for  which  the  State  re- 
ceived or  stipulated  for  a  consideration. 

But  in  the  present  case  the  question  arises  upon  the  statute  of  1850, 
requiring  all  railways  in  the  State  to  make  and  maintain  cattle-guards 
at  farm-crossings,  and  until  thev  do  so,  making  them  lialjle  for  damage 


done  to  cattle  by  their  engines,  by  reason  of  defect  of  fences  or  cattle- 
guards.  The  defendant's  charter  required  them  to  fence  their  road ,  l)ut 
no  express  provision  is  made  in  regard  to  cattle-guards.  There  is  no 
pretence  of  an}-  express  exemption  iu  the  charter  upon  this  subject,  or 
that  such  an  implied  exemption  can  fairly  be  said  to  form  a  condition  of 
the  Act  of  Incorporation,  unless  everything  is  implied  h\  grant,  which 
is  not  expressly-  inhibited,  whereas  the  true  rule  of  construction  in  re- 
gard to  the  powers  of  corporations  is,  that  the}'  are  to  take  nothing  b}' 
intendment,  but  what  is  necessarj-  to  the  enjo^'ment  of  that  which  is 
expressly  granted.  .   .  . 

But  upon  the  principle  contended  for  in  Providence  Bank  v.  Bil- 
lings, supra,  and  sometimes  attempted  to  be  maintained  in  favor  of 
other  corporations,  most  of  the  railways  in  this  State  would  be  quite 

.jx  -C^^rvuCXA/u/t,  ^'63'0"'~^  ^^16  control  of  the  legislature,  as  well  as  to  their  own  police,  as 
that  of  the  State  generally.     For  in  ver}'  few  of  their  charters  are  these 

o-jt^AAAJs-^  matters  defined,  or  the  control  of  them  reserved  to  the  legislature. 
Many  of  the  charters  do  not  require  the  roads  to  be  fenced.  But  in 
Quimby  v.  The  Vej-mont  Cent.  R.  Co.,  23  Vt.  387,  it  was  considered  that 
the  corporation  were  bound,  as  part  of  the  compensation  to  land-owners, 
either  to  build  fences  or  pay  for  them.  The  same  was  also  held  in 
Jlorss  V.  Boston  and  Maine  R.,  2  Cush.  536.  Any  other  construction 
will  enable  railroad  corporations  to  take  land  without  adequate  compen- 


,.«.  sation,  which  is  in  violation  of  the  State  Constitution,  and  would  make 
the  charter  void  to  that  extent.     So,  too,  in  regard  to  farm-crossings, 


the  charters  of  many  roads  are  silent.  And  it  has  been  held  that  the 
provision  for  restoring  private  ways  does  not  apply  to  farm-crossings. 
But  the  railways,  without  exception,  built  farm-crossings,  regard- 
ing them  as  an  economical  mode  of  reducing  land  damages,  and  they 
are  now  I)ound  to  maintain  them,  however  the  case  might  have  been  if 
none  had  been  stipulated  for,  and  the  damages  assessed  accordingly. 
Planning  v.  Eastern  Counties  Railicay  Co.,  12  M.  &  W.  237.  So. 
too,  many  of  the  charters  are  silent  as  to  cattle-guards  at  road-cross- 
ings, but  the  roads  generally  acquiesced  in  their  necessity,  both  for  the 
security  of  property  and  persons  upon  tlie  railroad  and  of  cattle  in  the 


CHAP,  v.]  THOKPE   V.   KUTLAND,    ETC.    RAILROAD    CO.  709 

highway.  For  it  has  been  held  that  this  provision  is  for  the  protection 
of  all  cattle  in  the  highway.  Faivcett  v.  27ie  York  and  North  Mid- 
land li.  Co.,  2  Law  &  Eq.  289  ;  Trow  v.  Vermont  Cent.  R.  Co.,  24 
Vt.  487.  Thus  making  a  distinction  in  regard  to  the  extent  of  the  lia- 
bilit}'  of  railways  for  damages  arising  through  defect  of  fences,  and 
farm-crossings,  and  cattle-guards,  at  those  points,  and  those  which  arise 
from  defect  of  fences,  and  cattle-guards  at  road-crossings,  the  former 
being  onl^^  for  the  protection  of  cattle,  rightfully  in  the  adjoining  fields, 
as  was  held  in  Jackson  v.  Rutland  &  B.  R.  Co.,  25  Vt.  150,  and  the 
other  for  the  protection  of  all  cattle  in  the  highwa}',  unless,  perhaps,  in 
some  excepted  cases,  amounthig  to  gross  negligence  in  the  owners. 
And  there  can  be  no  doubt  of  the  perfect  right  of  the  legislature  to 
make  the  same  distinction  in  regard  to  the  extent  of  the  liability'  of  rail- 
ways in  the  Act  of  1850,  if  such  was  their  purpose,  which  thus  becomes 
a  matter  of  construction. 

But  the  present  case  resolves  itself  into  the  narrow  question  of  the 
right  of  the  legislature,  by  general  statute  to  reqaire  all  railways, 
whether  now  in  operation,  or  hereafter  to  be  chartered,  or  built,  to 
fence  their  roads  upon  both  sides,  and  provide  sufficient  cattle-guards 
at  all  farm  and  road  crossings,  under  penalty  of  paying  all  damage 
caused  by  their  neglect  to  comply  with  such  requirements.  It  might  be 
contended  that  cattle-guards  are  a  necessary  part  of  the  fence  at  all 
crossings,  but  that  has  been  questioned,  and  we  think  the  matter  should 
be  decided  upon  the  general  ground.  It  was  supposed  that  the  question 
was  settled  b}-  this  court,  in  JVelson  v.  V.  &  C.  R.  Co.,  26  Vt.  717.  The 
general  views  of  the  court  are  there  stated  as  clearly  as  it  could  now  be 
done,  but  as  the  general  question  is  of  vast  importance,  both  to  the  roads 
and  the  public,  and  has  again  been  urged  upon  our  consideration,  we 
have  examined  it  very  much  in  detail. 

We  think  the  power  of  the  legislature  to  control  existing  railways  in 
this  respect,  may  be  found  in  the  general  control  over  thiT  police  of  the 
country,  which  resides  in  the  law-making  power  in  all  free  States,  and 
w^hich  is,  by  the  fifth  article  of  the  bill  of  rights  of  this  State,  expressly 
declared  to  reside  perpetually  and  inalienably  in  the  legislature,  which 
is,  perhaps,  no  more  than  the  enunciation  of  a  general  principle  appli- 
cable to  all  free  States,  and  whi(;h  cannot,  therefore,  be  violated  so  as 


to  deprive  the  legislature  of  the  power,  even  by  express  grant  to  any 
mere  public  or  private  corporatiolT!  And  when  the  regulation  of  the 
police_pf  a  city  or  town,  by  general  ordinances,  is  given  to  such  towTis 
and  cities,  and  the  regulation  of  their  own  internal  police  is  given  to 
railroads  to  be  carried  into  effect  ])y  their  by-laws  and  other  regulations, 
it  is.  of  course  always,  in  all  such  cases,  subject  to  tlic  superior  control 
of  the  legislature.  TliaMs  a  responsibility  which  legislatures  cannot 
dblggt  themselves  of,  if  they  would. 

This  police  power  of  the  State  extends  to  the  protection  of  the  lives, [ 
limbs,  health,  comfort,  and  quiet  of  all  persons,  and  the  protection  of 
all  property  within  the  State.     According  to  the  maxim,  Sic  utere  tuo  ut\ 


710  THORPE   V.    RUTLAND,    ETC.    RAILROAD    CO.  [CHAP.  V. 

alienwn  non  ?«?(7c(s,  which  being  of  universal  application,  it  must,  of 
course,  be  within  the  range  of  legislative  acti on  to  define  the  m ode  a n d 
manner  in  which  every  one  may  so  use  his  own  as  not  to  injure  others. 
iSo  far  as  railroads  are  concerned,  this  police  uowcr  which  resides  pri- 
maril}'  and  ullinuitely  in  the  legislature  is  twofold  :  1_.  The  police  of 
the  roads,  which,  in  the  absence  of  legislative  control,  the  corporations 
themselves  exercise  over  their  operatives,  and  to  some  extent  over  all 
who  do  business  with  them,  or  come  upon  their  grounds,  through  their 
general  statutes,  and  by  their  officers.  We  apprehend  there  can  be  no 
manner  of  doubt  that  the  legislature  may,  if  they  deem  the  public  good 
requires  it,  of  which  they  are  to  judge,  and  in  all  doubtful  cases  their 
judgment  is  final,  require  the  several  railroails  in  the  State  to  establish 
and  maintain  the  same  kind  of  i)olice  which  is  now  observed  upon  some 
of  the  more  important  roads  in  the  country  for  their  own  security,  or 
even  such  a  police  as  is  found  u|)on  the  English  railways,  and  those 
upon  the  continent  of  Europe.  No  one  ever  quesiioned  the  right  of  the 
Connecticut  Legislature  to  require  trains  upon  all  their  railroads  to  come 
to  a  stand  before  passing  draws  in  bridges  ;  or  of  the  Massachusetts 
Legislature  to  require  the  same  thing  before  passing  another  railroad. 
And  by  parity  of  reason  may  all  railways  be  required  so  to  conduct  them- 
selves, as  to  other  persons,  natural  or  corporate,  as  not  unreasonably 
to  injure  them  or  their  property.  And  if  the  business  of  railways  is 
specially  dangerous,  they  may  be  required  to  bear  the  expense  of  erect- 
ing such  safeguards  as  will  render  it  ordinarily  safe  to  others,  as  is  often 
required  of  natural  persons  under  such  circumstances. 

There  would  be  no  end  of  illustrations  upon  this  subject,  which,  in 
the  detail,  are  more  familiar  to  others  than  to  us.  It  ma}-  be  extended 
to  the  supervision  of  the  track,  tending  switches,  running  upon  the  time 
of  other  trains,  running  a  road  with  a  single  track,  using  improper  rails, 
not  using  proper  precaution  by  way  of  safet}'  beams  in  case  of  the 
breaking  of  axle-trees,  the  number  of  brakemen  upon  a  train  with  refer- 
ence to  the  number  of  cars,  employing  intemperate  or  incompetent  engi- 
neers and  servants,  running  beyond  a  given  rate  of  speed,  and  a 
thousand  similar  things,  most  of  which  have  been  made  the  subject  of 
legislation  or  judicial  determination,  and  all  of  which  may  be.  Hege- 
man  v.   Western  R.  Corp.,  16  Barbour,  353. 

2^  Thei-e  is  also  the  general  police  power  of  the  State,  by  which  per- 
sons and  property  are  subjected  to  all  kinds  of  restraints  and  burdens, 
in  order  to  secure  the  general  comfort,  health,  and  prosperity  of  the 
State,  of  the  perfect  right  in  the  legislature  to  do  which  no  question 
ever  was,  or,  upon  acknowledged  general  principles,  ever  can  be  made, 
so  far  as  natural  persons  are  concerned^  And  it  is  certainly  calculated 
to  excite  surprise  and  alarm,  that  the  right  to  do  the  same  in  regard  to 
railways  should  be  made  a  serious  question.  This  objection  is  made 
generally  upon  two  grounds  :  J^  That  it  subjects  corporations  to  vir- 
tual destruction  by  the  legislature  ;  and_^.  That  it  is  an  attem|)t  to  con- 
trol the  obligation  of  one  person  to  another,  in  matters  of  merely  pri- 
vate concern. 


CHAP,  v.]  THORPE   V.    RUTLAND,    ETC.    RAILROAD    CO.  711 

The  first  point  has  ah-eady  been  somewhat  labored.  It  is  admitted 
that  the  essential  franchise  of  a  private  corporation  is  recognized  by  the 
best  authority  as  private  property,  and  cannot  be  taken  witiiont  com- 
pensation, even  for  public  _use.  Armingto7i  v.  Garnet,  15  Vt.  7io] 
West  River  Bridge  Co.  v.  Dix,  16  Vt.  44G,  s.  c.  in  error  in  the  United 
States  Sup.  Ct. ;  6  Howard,  507;  1  Shelford  (Bennett's  ed.),  441,  and 
cases  cited. 

All  the  cases  agree  that  the  indispensable  franchises  of  a  corporation 
cannot  be  destroyed  or  essentially  modified.  This  is  the  very  [)oint 
upon  which  the  leading  case  of  Dartmouth  College  v.  Woodward  was 
decided,  and  which  every  well-considered  case  in  this  country  maintains. 
But  when  it  is  attemijted  upon  this  basis  to  deny  the  power  of  re^ulat- 
i ng  the  internal  police  of  the  railroads,  and  their  mode  of  transactin g 
their  general  business,  so  far  as  it  tends  unreasonably  to  infringe  the 
rights  or  interests  of  others,  it  is  putting  the  whole  subject  of  railway 
control  quite  above  the  legislation  of  the  country.  Many  analogous 
subjects  may  be  adduced  to  show  the  right  of  legislative  control  over 
matters  chiefly  of  private  concern.  It  was  held,  that  a  statute  making 
the  stockholders  of  existing  banks  liable  for  the  debts  of  the  bank  was 
a  valid  law  as  to  debts  thereafter  contracted,  and  binding  to  that  extent 
upon  all  stockholders,  subsequent  to  the  passage  of  the  law.  Stanley 
V.  Stanley.,  26  Maine,  191.  But  where  a  bank  was  chartered  with 
power  to  receive  money  on  deposit,  and  pay  away  the  same,  and  to  dis- 
count bills  of  exchange,  and  make  loans,  and  astatute  of  the  State  sub- 
sequentlj'  made  it  unlawful  for  any  bank  in  the  State  to  transfer  by 
indorsement  or  otherwise,  any  bill  or  note,  etc.,  it  was  held  that  the 
Act  was  void,  as  a  violation  of  the  contract  of  the  State  with  the  bank 
in  granting  its  charter.  Planters'  Bank  v.  Sharp,  and  JBaldwin  v. 
Payne.,  6  Howard,  BOl,  326,  327,  332;  Jamison  v.  Planters'  and 
3Ierchants'  Pank,  23  Alabama,  168.  It  is  true  that  any  statute  de- 
stroying the  business  or  profits  of  a  bank,  and  equally  of  a  railroad,  is 
void.  Hence  a  statute  in'ohil)iting  banks  from  taking  interest,  or  dis- 
counting bills  or  notes,  would  be  void,  as  striking  at  the  very  founda- 
tion of  the  general  objects  and  beneficial  purposes  of  the  charter.  But 
a  general  statute  reducing  the  rate  of  interest,  or  punishing  usur^-,  or 
prohibiting  speculations  in  exchange  or  in  depreciated  paper,  or  the 
issuing  of  bills  of  a  given  denomination,  or  creating  other  banks  in  the 
same  vicinit}',  have  alwaj's  been  regarded  as  valid.  And  while  it  is 
conceded  the  legislature  could  not  prohibit  existing  railways  from  caiTV- 
ing  freight  or  ])assengcrs,  it  is  believed  that  beyond  all  question,  it 
may  so  regulate  these  matters  as  to  impose  new  obligations  and  restric- 
tions upon  these  roads  materially  affecting  their  profits,  as  b^^  not  allow- 
ing them  to  run  in  an  unsafe  condition,  as  was  held  as  to  turnijikes. 
State  V.  Posworth,  13  Vt.  402.  But  a  law  allowing  certain  classes  of 
persons  to  go  toll  free  is  void.  Pingrey  v.  Washburn,  1  Aiken,  268. 
So,  too,  chartering  a  railroad  along  the  same  route  of  a  turnpike  is  no 
violation  of  its  rights  (TrAi7e  T^ifer  Turnpike  Co.x.  Vermont  Cent.R. 


712  THORPE   V.   RUTLAND,   ETC.   RAILROAD   CO.  [ClLVr.  V. 

Co.,  21  Vt.  590;   Taminke  Co.  v.  Eaihmy  Co.,  10  Gill  &  Johnson, 
392)  ;  or  chartering"  another  raihvuy  along  the  same  route  of  a  ronner 
one,  to  whom  no  exclusive   rights  are  uranted  in  terms.      Matter  of     1 
Hamilton  Acenue,   li  Barbour.  405;  or  the  establishment  of  a  free  /^^^ 
way  by  the  side  of  a  toll  bridge  ( Charles  Mioer  Bridge  v.  'Warren  ^ 
Bridge,  11  Peters,  420). 

The  legislature,  may  no  doubt,  prohibit  railroads  from  carrying  freiuht 
which  is  regarded  as  detrimental  to  the  public  health  or  morals,  or  the 
public  safety  o:euerally.  or  thev  mi^lit  prol)ably  be  made  liable  as  insur- 
ers of  the  lives  and  limbs  of  passengers  as  they  virtually  ^I'e  of  freif>ht. 
The  late  statute  giving  relatives  the  right  to  recover  damages  where  a 
person  is  killed,  has  wrought  a  very  important  change  in  the  liability  of 
railways,  ten  times  as  much,  probal)ly,  as  the  one  now  under  considei'a- 
tion  ever  could  do.  And  I  never  knew  the  right  of  the  legislature  to 
impose  the  liabilit}-  to  be  brought  in  question. 

But  the  argument  that  these  cattle-guards  at  farm-crossings  are  of  so 
private  a  character  as  not  to  come  within  the  genenil  range  of  legisl a- 
tive  .cognizance,  seems  to  me  to  rest  altogether  upon  a  misapprehension . 
It  makes  no  difference  how  few  or  how  many  licrsons  a  statute  will  be 
likely  to  atfect.  If  it  pi-ofesses  to  reoiilate  a  matter  of  public  concern, 
and  is  in  its  terms  general.  appl3dng  equally  to  all  persons  or  {property 
coming  within  its  provisions,  it  makes  no  difference  in  regard  to  its 
character  or  validity,  whether  it  will  be  likely  to  reach  one  case  or  ten 
thousand.  A  statute  requiring  powder-mills  to  be  built  remote  from  the 
villages  or  highways,  or  to  be  separated  from  the  adjoining  lands  by 
any  such  muniment  as  may  be  requisite  to  afford  security  to  others' 
property  or  business,  would  probably  be  a  valid  law  if  there  were  but 
one  powder-mill  in  the  State,  or  none  at  all,  and  notwithstanding  the 
whole  expense  of  the  protection  should  be  imi)osed  ui)on  the  proprietor 
of  the  dangerous  business.  And  even  wiiere  the  State  legislnture  hnvft 
created  a  corporation  for  manufacturing  powder  at  a  given  point,  at  the 
time,  remote  from  inhabitants,  if  in  process  of  time  dwellings  apiproach 
the  locality,  so  as  to  render  the  further  pursuit  of  the  business  at  that 
point  destructive  to  the  interests  of  others,  it  may  be  required  to  be  sus- 
pended or  removed,  or  secured  from  doing  harm,  at  the  sole  exi^ense  of 
such  corporation.  •  This  very  point  is,  in  effect,  decided  in  regard  to 
Trinity  churchyard,  which  is  a  royal  grant  for  interment,  securing  fees 
to  the  proprietors,  in  the  case  of  Coates  v.  The  City  of  Neio  York,  7 
Cowen,  585  ;  and  in  regard  to  2'he  Presbyterian  Church,  in  their  case 
V.  The  City  of  New  York,  5  Cowen,  538. 

So,  too,  a  statute  requiring  division  fences  between  adjoining  land 
proprietors,  to  be  built  of  a  given  height  or  quality,  although  differing 
from  the  former  law,  would  bind  natural  persons  and  equallj-  corpora- 
tions. But  a  statute  requiring  land-owners  to  build  all  their  fences  of 
a  given  quaht}'  or  height,  would  no  doubt  be  invalid,  as  an  unwarrant- 
able interference  with  matters  of  exchisively  private  concern.  But  the 
farm-crossings  upon  a  railway  are  by  no  means  of  this  character.    They 


% 

^ 


CHAl'.  v.]  THORPE   V.    RUTLAND,   ETC.    RAILROAD    CO.  713 

are  division  fences  between  adjoining  occnpants,  to  ail  intents.  In 
addition  to  this,  tliey  are  the  saleguards  vvliicli  one  person,  in  tlie  excr- 
cise  of  a  dangerous  bnsiness,  is  required  to  maintain  in  order  to  pre- 
vent  the  liabiHt}-  to  injure  his  neighbor.  This  is  a  control  by  legislative 
action  coming  within  the  obligation  of  the  maxim.  Sic  lUeve  tuo,  and 
which  has  always  been  exercised  in  this  manner  in  all  free  States,  in 
regard  to  those  whose  business  is  dangerous  and  destructive  to  other 
persons'  property  or  business.  Slaughter-houses,  powder-mills,  or 
houses  for  keeping  powder,  unhealthy  manufactories,  the  keeping  of 
wild  animals,  and  even  domestic  animals,  dangerous  to  persons  or  prop- 
erty, have  always  been  regarded  as  under  the  control  of  the  legislature. 
It  seems  incredible  how  an}-  doubt  should  have  arisen  upon  the  point  now 
before  the  court.  And  it  would  seem  it  could  not,  except  from  some 
undefined  apprehension,  which  seems  to  have  prevailed  to  a  considerable 
extent,  that  a  corporation  did  possess  some  more  exclusive  powers  and 
privileges  upon  the  subject  of  its  business,  than  a  natural  person  in  the 
same  business,  with  equal  power  to  pursue  and  to  accomplish  it,  which, 
I  trust,  has  been  sufficiently  denied. 

I  do  not  now  perceive^any  just  ground  to  question  the  right  of  the 
legislature  to  make  railways  liable  for  all  cattle  killed  by  tlieir  trains. 
It  might  be  unjust  or  unreasonable,  but  none  the  less  competent.  Girt- 
man  v.  Central  JRaih-oad,  1  Kelly  (Georgia),  173,  is  sometimes  quoted 
as  having  held  a  different  doctrine,  but  no  such  point  is  to  be  found  in 
the  case.  The  British  Parliament  for  centuries,  and  most  of  the  Ameri- 
can legislatures,  have  made  the  protection  of  the  lives  of  domestic  ani- 
mals, the  subject  of  penal  enactment.  It  would  be  wonderful  if  they 
could  not  do  the  same  as  to  railways  or  if  they  could  not  punish  the 
killing,  by  requiring  them  to  compensate  the  owner,  or,  as  in  the  pres- 
ent case,  to  do  it  until  they  used  certain  precautions  in  running  their 
trains,  to  wit,  maintained  cattle-guards  at  roads  and  farm-crossings. 

There  are  some  few  cases  in  the  American  courts  bearing  more  di- 
recth-  upon  the  verj-  point  before  us.  In  Suydam  v.  Moore^  8  Barbour, 
358,  the  very  same  point  is  decided  against  the  railway  ;  Willard,  J., 
compares  the  requirement  to  the  law  of  the  road,  the  passing  of  canal- 
boats,  and  keeping  lights  at  a  given  elevation  in  steamboats,  and  says 
it  comes  clearly  within  the  maxim  Sic  iitere  ttio ;  and  in  Waldron  \. 
The  liensselaer  &  Saratoga  M.  Co.,  Ibid.  390,  the  same  point  is  de- 
cided, and  the  same  judge  says  the  requirements  of  the  new  Act,  which 
is  identical  with  our  statute  of  1850,  as  applied  to  existing  railways, 
"  are  not  inconsistent  with  their  charter,  and  are,  in  our  judgment,  such 
as  the  legislature  had  the  right  to  make."  They  were  designed  for  the 
public  safety,  as  well  as  the  protection  of  property.  In  Milliman  v. 
I'lie  Oswego  &  Syracuse  JR.,  10  Barbour,  87,  the  ground  is  assumed 
that  the  new  law  was  not  intended  to  apply  to  existing  roads.  And  no 
doubt  is  here  intimated  of  the  right  of  the  legislature  to  impose  similar 
regulations  upon  existing  railways.  The  N.  Y.  Revised  Statutes  sub- 
ject all  corporate  charters  to  the  control  of  the  legislature,  but  it  has 


714  THORPE   -0.   KUTLAND,    ETC.    RAILROAD    CO.  [CHAP.  V. 

been  there  considered,  that  this  reservation  does  not  extend  to  matters  of 
this  kind,  but  that  the  right  depends  upon  general  legislative  authority, 
Tlie  case  of  The  Galena  and  C'hicatjo  Union,  R.  Co.  v.  Loomis,  13  Illi- 
nois, 548,  decides  the  point  that  the  legislature  may  pass  a  law,  requiring 
all  railways  to  ring  the  bell  or  blow  the  whistle  of  their  engines  imme- 
diately before  passing  highways  at  grade.  The  court  sa}',  "  The  legis- 
lature has  the  power,  b}'  general  laws,  from  time  to  time  as  the  public 
exigencies  may  requu-e,  to  regulate  corporations  in  their  franchises,  so 
as  to  provide  for  the  public  safety.  The  provision  in  question  is  a  mere 
police  regulation,  enacted  for  the  protection  and  safetj'  of  the  public, 
and  in  no  manner  interferes  with,  or  impairs  the  powers  conferred  on 
the  defendants  in  their  Act  of  Incorporation." 

All  farm-crossings  in  England  are  required  to  be  above  or  below 
grade,  so  as  not  to  endanger  passengers  upon  the  road,  and  so  of  all 
road-crossings  there,  unless  protected  by  gates.  I  could  entertain  no 
doubt  of  the  right  of  the  legislature  to  require  the  same  here  as  to  all 
railways,  or  even  to  subject  their  operations  to  the  control  of  a  board  of 
commissioners,  as  has  been  done  in  some  States.  In  Jienson  v.  New 
York  City,  10  Barbour,  223,  it  was  held,  that  a  ferry,  the  grant  to 
which  was  held,  not  under  the  authorit}-  of  the  State,  but  from  the  cit}'" 
of  New  York,  and  which  was  a  private  corporation,  as  to  the  stock- 
might  be  required  by  the  legislature  to  conform  to  such  regulations,  re- 
strictions, and  precautions  as  were  deemed  necessary  for  the  public 
benefit  and  securit}'.  The  opinion  of  Woodbury,  Justice,  in  East  Hart- 
ford V.  Hartford  bridge  Co.,  10  Howard,  511,  assumes  similar 
grounds,  although  that  case  was  somewhat  different.  The  case  of  Swan 
V.  Williams,  2  Michigan,  427,  denies  that  railways  are  private  corpora- 
tions. But  that  proposition  is  scarceh*  maintainable  so  far  as  the  pe- 
cuniar}'  interest  is  concerned.  If  the  stock  is  owned  b}'  private  persons, 
the  corporation  is  private  so  far  as  the  right  of  legislative  control  is 
concerned,  however  public  the  functions  devolved  upon  it  may  be.  The 
language  of  Marshall,  Chief  Justice,  in  Dartrnoutli  College  v.  Wood- 
ward, 4  Wheaton,  518,  629,  seems  pertinent  to  the  general  question 
of  what  laws  ai'e  prohibited  on  the  ground  of  impairing  the  obligation  of 
contracts  :  "  That  the  framers  of  the  Constitution  did  not  intend  to  re- 
strain the  States  in  the  regulation  of  their  civil  institutions,  adopted  for 
internal  government,  and  that  the  instrument  they  have  given  us  is  not 
to  be  so  construed,  ma}-  be  admitted."  And  cqualh-  pertinent  is  the 
commentar}-  of  Parsons  on  Contracts,  2  vol.  511,  upon  the  provision  of 
the  United  States  Constitution  in  relation  to  the  obligation  of  contracts. 
"  We  may  say  that  it  is  not  intended  to  appl}-  to  public  property,  to  the 
discharge  of  public  duties,  to  the  possession  or  exercise  of  public  rights, 
nor  to  any  changes  or  qualifications  in  any  of  these,  which  the  legisla- 
ture of  a  State  may  at  an}'  time  deem  expedient." 

We  conclude  then,  that  the  authority  of  the  legislature  to  make  jthe 
requirement  of  existing  railways  may  be  vindicated,  because  it  comes 
fairly  withiu  the  police  of  the  State  ;    2.  Because  it  regards  the  division 


CHAP,  v.]  WYNEHAMER   V.   THE   PEOPLE.  715 

fence  between  adjoining  proprietors  ;  3.  Because  it  properly  concerns  the 
safe  mode  of  exercising  a  dangerous  occupation  or  business  ;  and  4.  Be- 
cause it  is  but  a  reasonable  [n'ovision  for  the  protection  of  domestic 
animals,  all  of  which  interests  fall  legitimately  within  the  range  of  legis- 
lative  control,  both  in  regard  to  natural  and  artificial  persons. 

Judgment  affirmed.^ 
Bennett,  J.,  dissenting. 


Hv 


<^ 


WYNEHAMER    v.    THE    PEOPLE. 

THE  PEOPLE  V.   TOYNBEE. 

New  York  Court  of  Appeals.     1856. 

[13  N.  Y.  378.] 

Wynehamer,  the  defendant  in  the  court  below  in  the  case  first  above 
entitled,  was,  in  July,  1855,  indicted  at  a  court  of  general  sessions, 
held  in  and  for  the  county  of  Erie,  for  selling  intoxicating  liquors, 
contrary  to  the  provisions  of  the  statute  entitled  "  An  Act  for  the  Pre- 
vention of  Intemperance,  Pauperism,  and  Crime."  -     The  indictment 

^  There  are  some  aualogous  subjects  where  legislative  coutrol  has  been  sustained  by 
the  courts  which  may  properly  be  here  aHuded  to.  The  expense  of  sidewalks  and 
curbstones  in  cities  and  towns  has  been  imposed  upon  adjacent  lots,  chiefly  for  general 
comfort  and  convenience.  Paxson  v.  Sweet,  1  Green,  196;  Citij  of  Lowell  v.  UadJejj, 
8  Metcalf,  180.  Unlicensed  persons  not  allowed  to  remove  house-dirt  and  offal  from 
the  streets.  Vandine's  Case,  6  Pick.  187.  Froliibiting  persons  selling  produce  not 
raised  upon  their  own  farms,  from  occupying  certain  stands  in  the  market.  Nightin- 
gale's Case,  11  Pick.  168.  See  also  Bufalo  \.  Wehster,  10  Wendell,  99;  BusJi  v.  Sea- 
buri/,  8  Johns.  327.  Prohibiting  the  driving  or  riding  horses  faster  than  a  walk  in 
certain  streets.  Commonwealth  \.  TForces^er,  3  Pick.  462.  Prohibiting  bowling-alleys. 
Tanner  v.  The  Trustees  of  the  Citii  of  Albion,  b  Hill,  121,  or  the  exhibition  of  stud  horses 
or  stallions  in  public  places.  Nolan  v.  Mayor  of  Franklin,  4  Yerger,  163.  The  same 
may  be  said  of  all  statutes  regulating  the  mode  of  driving  upon  the  highway  or  upon 
bridges,  the  validity  of  which  have  long  been  acquiesced  in. 

The  destruction  of  private  proiicrty  in  cities  and  touais,  to  prevent  the  spread  of  con- 
flagrations, is  an  extreme  application  of  the  rule,  conipellin"^  tlio  subserviency  of  pri- 
vate rights  to  public  security,  in  cases  of  imperious  necessity.  But  even  tliis  has  been 
fully  sustained  after  tlie  severest  scrutiny.  Hah  v.  Lawrence,  and  other  cases  upon  the 
same  subject;  1  Zabriskie,  714,  3  Zabriskie,  b9Q,  and  cases  there  referred  to  from  the 
New  York  Reports.  There  is,  in  short,  no  end  to  these  illustrations,  when  we  look 
critically  into  the  police  of  the  large  cities.  One  in  any  degree  familiar  with  this  sub- 
ject would  never  question  the  right  doijcnding  upon  invincible  necessity,  in  order  to 
the  maintenance  of  any  show  of  administrative  authority  among  the  class  of  persons 
with  which  the  city  police  have  to  do.  To  such  men  any  doubt  of  the  riglit  to  subject 
persons  and  property  to  such  regulations  as  the  public  security  and  health  m.ay  require, 
reg-iriUess  of  merely  private  convenience,  looks  like  mere  badinage.  They  can  scarcely 
regard  the  objector  as  altogether  serious.  And  generally,  these  doubts  in  regard  to 
the  extent  of  governmental  authority  come  from  those  who  have  had  small  experience. 
[This  appears  to  be  the  Chief  Justice's  note.  See  also  Minneapolis,  ^-c.  Rij.  Co.  v.  Em- 
mons, 149  U.  S.  364  (1893).  — Ed.] 

2  The  reporter  does  not  give  the  terms  of  the  statute.  Tlie  following  summary  of 
it  is  taken  from  the  opinion  of  A.  S.  Johnsox,  J.,  at  pp.  406-409  :  "  The  sections  which 


716  WYNEHAMER   V.   THE   TEOI'LE.  [CIIAP.  V. 

contained  several  counts,  each  of  which  charged  in  substance  that  the 
defendant,  on  a  day  subsequent  to  the  4th  of  Jidy,  1855,  at  the  city  of 

particularlv  relate  to  it  arc  sul)stantially  tliese,  omitting  sucli  ]iarts  as  do  not  bear 
upon  tills  case  :  '  It  shall  be  the  duty  of  every  sheriif,  under  slieriff,  deputy  sheriff,  con- 
stable, marshal,  or  policeman,  to  arrest  any  person  whom  he  shall  sec  actually  engaged 
in  the  commission  of  any  offence  in  violation  of  the  1st  section  of  tiiis  Act,  and  to 
seize  all  licpxor  kept  in  violation  of  said  section,  at  the  time  and  place  of  the  commis- 
sion of  such  offence,  together  with  the  vessels  in  which  the  same  is  contained,  and 
forthwith  to  convey  such  person  before  any  magistrate  of  the  same  city  or  town,  to  be 
dealt  with  according  to  law,  and  to  store  the  liquor  and  vessels  so  seized  in  some  con- 
venient place,  to  be  disposed  of  as  hereinafter  provided.  It  shall  be  the  duty  of  every 
officer  by  whom  any  arrest  and  seizure  sliall  be  made,  under  this  section,  to  make  com- 
plaint on  oath  against  the  person  arrested,  and  to  prosecute  such  conijdaint  to  judg- 
ment and  execution.'  —  Laws  of  1855,  p.  340,  §  12.  'All  liquors  and  vessels  in  which 
they  are  contained,  which  shall  have  been  found  and  seized  in  the  possession  of  any 
person  who  shall  have  been  arrested  for  violating  any  provision  of  the  1st  section  and 
not  claimed  by  any  other  person,  shall,  upon  conviction  of  such  person  of  such  offence, 
be  adjudged  forfeited.'  §  13.  When  any  liquor  seized  under  any  provision  of  the 
Act  shall  be  adjudged  forfeited,  as  provided  in  any  section  of  the  Act,  it  shall 
be  the  duty  of  tlie  magistrate  (after  the  determination  is  become  final)  forthwith 
to  issue  a  warrant  commanding  that  tlie  liquor  be  destroyed.  The  officer  to  whom 
the  warrant  shall  be  delivered  is  to  destroy  it  and  make  a  return  of  the  destruc- 
tion, and  then  an  execution  is  to  be  issued  to  sell  the  vessels  which  contained  the 
liquor.  §  10.  Every  justice  of  the  peace,  police  justice,  county  judge,  city  judge 
(certain  other  officers  in  New  York),  and  in  all  cities  where  there  is  a  recorder's  court, 
the  recorder,  has  power  to  issue  process,  to  hear  and  determine  charges,  and  punish  for 
all  offences  under  the  Act,  and  to  hold  courts  of  special  sessions  for  the  trial  of  such 
offences.  .  The  section  proceeds  :  '  Such  court  of  special  sessions  shall  not  be  required 
to  take  the  examination  of  any  person  brought  before  it  upon  charge  of  an  offence 
under  the  Act,  but  shall  proceed  to  trial  as  soon  thereafter  as  the  complainant 
can  be  notified.'  Power  to  adjourn,  for  good  cause,  is  given  for  not  exceeding  twenty 
days.  At  the  time  of  joining  issue,  and  not  after,  either  party  may  demand  trial  by 
jury,  in  which  case  the  magistrate  is  to  cause  a  jury  to  be  summoned  and  empanelled, 
as  in  other  criminal  cases  in  courts  of  special  sessions.  §  5.  No  person  who  shall 
have  been  convicted  of  any  offence  against  any  provision  of  the  Act,  or  who  shall  be 
engaged  in  the  sale  or  keeping  of  intoxicating  liquors,  contrary  to  the  Act,  shall  be 
competent  to  act  as  a  juror  upon  any  trial  under  any  provision  of  the  Act.  §  16.  Upon 
the  trial  of  any  complaint  under  the  Act,  proof  of  the  sale  of  liquor  sliall  be  sufficient 
to  sustain  an  averment  of  an  unlawful  sale,  and  proof  of  delivei-y  shall  be  prima  facie 
evidence  of  sale.  §  17.  A  violation  of  any  provision  of  the  1st  section  is  made  a  mis- 
demeanor. The  guilty  party  is  to  forfeit  all  liquors  kept  by  him  in  violation  of  the 
section,  and  is  to  be  further  punished  by  a  fine  of  .$50  for  the  first  offence ;  for  the  sec- 
ond, by  a  fine  of  $100  and  thirty  days'  imprisonment;  for  the  third  and  every  subse- 
quent offence,  by  a  fine  not  less  than  f  100,  nor  more  than  $250,  and  by  imprisonment 
for  not  less  than  three,  nor  more  than  six  months.  The  defendant  is  likewise  to  pay 
all  costs  and  fees  provided  in  the  Act;  and  in  default  of  paj'ment  of  any  such  fine, 
costs,  and  fees,  or  any  part  thereof,  the  defendant  is  to  be  committed  until  the  same  are 
paid  '  not  less  than  one  day  per  dollar  of  the  amount  unpaid.'  §  4.  .  .  . 

"  The  prohibitory  clause  itself,  upon  which  these  proceedings  are  founded,  consti- 
tutes the  1st  section.  Omitting  certain  exceptions  from  the  prohibition,  wliicli  will  be 
afterwards  noticed,  it  provides  that  intoxicating  liquor  shall  not  be  sold,  or  kept  for 
sale,  or  kept  with  intent  to  be  sold,  by  any  person,  in  any  place  whatsoever ;  that  it 
shall  not  be  given  away,  nor  be  kept  with  intent  to  be  given  away,  in  any  place  what- 
soever, except  in  a  dwelling-house,  in  no  part  of  which  any  tavern,  store,  grocery,  shop, 
boarding-house  or  victualling-house,  or  room  for  gambling,  dancing,  or  other  public 
amusement  or  recreation  of  anj'  kind  is  kept ;  that  it  shall  not  be  kept  or  deposited  in 


CHAP,  v.]  WYNEHAMER   V.   THE   TEOPLE.  717 

Buffalo,  M-ilfiilly  a,nd  unlawfully  and  contrary  to  the  form  of  the  stat- 
ute, sold  to  persons  unauthorized  by  law  to  sell  intoxicating  liquor  to 
the  jury  unknown,  intoxicating  liquor,  to  wit,  a  gill  each  of  rum,  brandy, 
gin,  wine,  whiske}-,  and  strong  beer,  without  having  filed  in  the  office 
of  the  clerk  of  the  county  of  Erie  an}'  undertaking  approved  by  the 
county  judge  of  that  count}*,  according  to  the  provisions  of  the  2d 
section  of  the  Act.  It  was  further  alleged  in  eacli  count  of  the  indict- 
ment that  the  liquor  so  sold  was  not  alcohol  manufiictured  b}'  the 
defendant,  or  pure  wine  manufactured  by  him  from  grapes  grown  by 
himself;  and  that  the  sale  of  the  liquor  was  not  authorized,  nor  was 
an}-  right  to  sell  the  same  given  by  any  law  or  treaty  of  the  United 
States.  The  defendant  pleaded  not  guilty  ;  and  the  issues  were  tried 
in  the  court  of  general  sessions  by  a  common-law  jury  duly  empan- 
elled. On  the  trial  the  counsel  for  the  people  gave  evidence  tending 
to  prove  that  after  the  4th  day  of  July,  1855,  and  before  the  finding  of 
the  bill  of  indictment,  the  defendant  on  several  occasions  had  sold  and 
delivered  to  different  persons  at  his  bar,  in  Buffalo,  brandy,  in  quan- 
tities less  than  a  pint,  which  was  drank  on  his  premises.  When  the 
people  rested,  the  counsel  for  the  defendant  requested  the  court  to  dis- 
charge the  defendant,  or  to  direct  the  jury  to  render  a  verdict  of  not 

any  place  whatsoever,  except  in  such  a  dwelling-house  as  is  above  described,  or  for 
sacramental  purposes  in  a  church  or  place  of  worship;  or  in  a  place  where  either  some 
chemical,  or  mechanical,  or  medicinal  art,  requiring  the  use  of  liquor,  is  carried  on  as 
a  regular  branch  of  business,  or  while  in  actual  transportation  from  one  place  to  an- 
uther,  or  stored  in  a  warehouse  prior  to  its  reaching  the  place  of  its  destination.  By 
an  exception  iu  this  same  section,  liquor  may  be  given  away  as  a  medicine  by  physicians 
pursuing  tlie  practice  of  medicine  as  a  business,  or  for  sacramental  purposes.  The  sec- 
tion concludes  with  a  provision  that  it  shall  not  apply  to  liquor,  the  right  to  sell  which  in 
this  State  is  given  by  any  law  or  treaty  of  the  United  States. 

"  By  §§  2  and  3,  persons  answering  the  description,  doing  the  acts,  and  taking  the 
oaths  prescribed  therein,  may  be  licensed  to  keep  for  sale,  and  sell  intoxicating  liquor 
and  alcohol  for  mechanical,  chemical,  or  medicinal  purposes,  and  wine  for  sacramental 
use.  By  §  22,  the  Act  is  not  to  be  construed  to  prevent  the  sale  of  cider  in  quantities 
not  less  than  ten  gallons ;  nor  to  prevent  the  manufactui-er  of  alcohol,  or  of  pure  wine 
from  grapes  grown  by  him,  from  keeping  or  from  selling  such  alcohol  or  wine,  nor  the 
importer  of  foreign  liquor  from  keeping  or  selling  the  same  in  the  original  packages 
to  any  person  authorized  by  the  Act  to  sell  such  liquors  ;  nor  to  prohibit  the  manu- 
facture or  keeping  for  sale,  nor  the  selling  burning  fluids  of  any  kind,  perfumery, 
essences,  drugs,  varnishes,  nor  any  other  article  which  may  be  composed  in  part  of 
alcohol  or  other  spirituous  liquors,  if  not  adapted  to  use  as  a  beverage,  or  in  evasion 
of  this  Act. 

"The  foregoing  clauses  contain,  in  substance,  the  prohibition  of  the  Act,  with  tlie 
exceptions  which  qualify  its  effect. 

"  Two  other  provisions  are  necessary  to.  be  quoted,  as  they  bear  upon  the  rights 
which  the  owner  of  liquor  has  in  it,  and  the  modes  in  which  he  may  assert  those 
rights.  The  first  is  at  the  close  of  §  16,  and  declares  '  that  no  person  shall  maintain  an 
action  to  recover  the  value  or  possession  of  any  intoxicating  liquor  sold  or  kept  l)y  him, 
which  shall  be  purchased,  taken,  detained,  or  injured  by  any  other  person,  unless  he 
shall  prove  that  such  liquor  was  .sold  according  to  the  provisions  of  the  Act,  or  was  law- 
fully kept  and  owned  by  him.'  The  other  clause  is  at  the  end  of  §  2.5,  and  provides  that 
'  all  liquor  kept  in  violation  of  any  provision  of  the  Act  shall  be  deemed  and  is  hereby 
declared  to  be  a  public  nuisance.'  " —  Ed. 


718  WYNEHAMER   V.   THE   PEOPLE.  [CHAP.  V. 

guilt}',  on  the  followiug  grounds,  viz.:  1.  That  it  was  not  shown  that 
any  offence  had  been  comniitted  by  the  defendant;  2.  That  it  did  not 
appear  but  that  the  liquor  alleged  to  have  been  sold  was  liquor,  the 
right  to  sell  which  was  given  by  laws  or  treaties  of  tlie  United  States, 
nor  but  that  it  was  imported  by  defendant  from  foreign  countries  in 
pursuance  of  the  United  States  laws  ;  3.  That  the  1st  aud  4th  sections 
of  the  aforesaid  Act  were  respective!}-  in  violation  of  the  constitutions 
of  the  United  States  and  of  this  State,  and  void  ;  4.  That  the  said  Act 
was  unauthorized  b}'  and  in  conflict  with  the  laws  and  treaties  of  the 
United  States  and  the  Constitution  of  this  State,  and  therefore  void  ; 
5.  That  it  was  not  shown  but  that  the  liquor  alleged  to  have  been  sold 
b}'  the  defendant  was  authorized  to  be  sold  by  the  Act  of  the  Legislature 
above  referred  to.  The  court  overruled  each  of  the  objections,  and 
decided  that  the  case  must  be  submitted  to  the  jur}-,  and  the  counsel 
for  the  defendant  excepted.  Thereupon  the  counsel  for  the  defendant 
offered  to  prove  that  the  liquor  alleged  to  have  been  sold  was  imported 
into  this  State  from  a  foreign  countr}',  under  and  in  pursuance  of  the 
revenue  laws  of  the  United  States,  and  that  the  legal  duties  thereon 
were  paid  ;  that  the  defendant  purchased  such  liquor  from  the  import- 
ers in  the  package  in  which  it  was  imported  ;  and  that  it  was  drawn 
from  such  package  and  sold  to  the  persons  and  at  the  times  proved  b}* 
the  witnesses  for  the  prosecution.  The  counsel  for  the  people  admitted 
the  truth  of  the  facts  so  offered  to  be  proved,  but  objected  to  their 
admissibility  as  evidence,  on  the  ground  that  the}'  were  irrelevant  and 
immaterial.  The  court  so  held  and  excluded  the  evidence,  and  the 
defendant's  counsel  excepted.  The  counsel  for  the  defendant  also 
offered  to  prove  that  the  liquor  sold  by  the  defendant  was  owned  and 
possessed  by  him  previous  to  and  on  the  3d  of  July,  1855  ;  the  counsel 
for  the  people  admitted  the  fact  to  be  so,  but  objected  to  it  as  evi- 
dence on  the  ground  that  it  was  immaterial.  The  objection  was  sus- 
tained, and  the  evidence  excluded,  and  the  defendant's  counsel  excepted. 
At  the  close  of  the  evidence  the  counsel  for  the  defendant  requested 
the  court  to  direct  the  jury  to  acquit  the  defendant,  on  the  grounds 
stated  at  the  close  of  the  evidence  for  the  prosecution.  The  court 
declined  and  the  defendant's  counsel  excepted.  The  counsel  for  the 
defendant  also  requested  the  court  to  charge  the  jury  that  the  people 
must  prove  that  the  liquor  sold  b}-  the  defendant  was  intoxicating ;  the 
court  as  to  this  request  charged,  that  if  it  was  proved  that  the  defend- 
ant sold  brand}-,  this  was  intoxicating  liquor  within  the  meaning  of  the 
Act;  and  the  defendant's  counsel  again  excepted.  The  jury  found  the 
defendant  guilty  ;  and  the  court  sentenced  him  to  pay  a  fine  of  fifty 
dollars,  and  to  be  committed  until  the  same  was  paid.  The  judgment 
was  affirmed  by  the  Supreme  Court  sitting  in  the  eighth  district.  See 
20  Barbour,  567.     The  defendant  sued  out  a  writ  of  error. 

Toynbee,  the  defendant  in  the  case  secondly  above  entitled,  was,  on 
the  17th  of  July,  1855,  arrested  by  Mathews,  a  police  oflScer  of  the 
city  of  Brooklyn,  and  brought  before  a  police  justice  of  that  city,  with- 


CHAP,  v.]  WYNEIIAMER   V.    THE   PEOPLE.  719 

out  an}'  precept  for  his  tirrest  having  been  issued.  When  he  brought 
him  before  the  justice,  Mathews  made  a  complaint  in  writing,  verified 
b}'  his  oath,  which  stated  that  on  the  da}'  of  the  arrest  the  complainant 
saw  the  defendant  at  a  place  which  was  specified,  in  Brooklyn,  sell  and 
keep  for  sale,  and  have  in  his  possession,  with  intent  to  sell,  intoxicat- 
ing liquors,  to  wit,  brandy  and  champagne";  that  the  complainant  saw 
the  defendant  engaged  in  selling  liquor,  to  wit,  brandy,  in  violation  of  the 
Act  for  the  prevention  of  intom[)erauce,  pauperism,  and  crime  ;  that 
tlie  offence  consisted  in  selling  one  glass  of  brandy  and  one  bottle  of 
champagne ;  that  the  complainant  had  arrested  the  defendant  and 
brought  him  before  the  justice  to  answer  the  charge,  and  to  be  dealt 
with  according  to  law  ;  and  that  at  the  time  and  place  of  the  offence, 
he,  the  complainant,  seized  the  said  brandy  and  champagne,  wnth  the 
bottles  in  which  they  were  contained,  and  had  stored  them  in  a  con- 
venient place,  to  be  disposed  of  as  provided  by  the  aforesaid  Act. 
The  defendant  asked  to  be  discharged,  on  the  ground  that  the  Act  was 
unconstitutional,  and  on  the  further  ground  that  the  complaint  did  not 
set  forth  facts  sufficient  to  constitute  an  offence  by  the  defendant.  His 
application  was  denied.  He  then  objected  to  being  tried  by  a  court  of 
special  sessions,  and  offered  to  give  bail  for  his  appearance  at  the  next 
court  having  criminal  jurisdiction.  The  justice  overruled  the  objection, 
refused  to  take  bail,  and  required  the  defendant  to  plead  to  the  charge. 
The  defendant  pleaded  not  guilty,  and  thereupon  the  complainant  was 
sworn  and  testified  that  the  defendant  kept  a  hotel  in  Brooklyn,  in  the 
basement  of  which  he  kept  a  bar-room  ;  that  on  the  17th  of  July,  he, 
the  witness,  saw  the  defendant  sell  a  glass  of  brandy  and  a  bottle  of 
champagne,  which  were  intoxicating  liquors,  and  that  the  defendant 
kept  for  sale  in  his  bar-room  such  liquors.  He  further  testified  that 
the  champagne  was  imported  liquor  ;  and  that  he,  the  witness,  on  the 
occasion  aforesaid,  seized  and  took  into  his  possession  the  bottle  of 
brandy  from  which  the  defendant  sold,  and  the  bottle  of  champagne 
which  he  had  sold  and  was  in  the  act  of  delivering.  Tlie  foregoing  is 
the  substance  of  all  the  evidence.  The  court  found  the  defendant 
guilty  of  selling  and  having  in  his  possession  with  intent  to  sell,  in- 
toxicating liquors,  as  charged  in  the  complaint,  adjudged  him  guilty  of 
a  misdemeanor,  and  sentenced  him  to  pay  a  fine  of  $50,  and  $5.87  costs 
of  the  proceedings,  and  that  he  be  imprisoned  until  the  same  were  paid, 
not  exceeding  fifty-six  days.  The  court  further  adjudged  that  the 
liquor  seized  be  forfeited,  and  that  a  warrant  for  its  destruction  be 
issued.  On  appeal  by  the  defendant,  the  judgment  was  reversed  by  the 
Supreme  Court  at  a  general  term  in  the  second  district.  See  20  Barb. 
168.     The  people  appealed  to  this  court.   .   .   . 

A.  J.  Parker^  for  the  plaintiff  in  error,  in  the  case  first  entitled. 

A.  Sawin,  for  the  people. 

J.  M.  Van  CoU,  for  the  people,  in  the  case  secondly  entitled. 

John  A.  ZiOtt,  for  the  defendant.  .  .   . 

Hubbard,  J.     The  first  ground  assumed  by  the  appellant's  [Toyn- 


720  WYXEHAMER   V.   THE   PEOPLE.  [CIIAP.  V. 

bee's]  counsel  on  the  argument  was,  that  the  sale  of  imported  liquor 
in  a  less  quantity  than  the  package  of  importation  was  contrary  to  tlie 
provisions  of  the  Act  under  which  the  defendant  was  convicted.  This 
is  clearly  a  tenable  position.  In  the  view  wliich  I  take  of  the  law  in 
this  case,  it  is  not  ver}'  essential  that  this  proposition  be  considered  at 
much  length.  ... 

The  Act  in  question,  by  the  exception  alluded  to,  expressly  refrains 
from  all  interference  with  the  operation  of  the  laws  of  Congress  or  with 
the  right  of  sale  of  the  importer  as  above  stated,  and  hence  is  not 
obnoxious  to  the  objection  I  am  considering.-^ 

The  next  question  to  be  considered  relates  to  the  prohibitory  cliar- 
acter  of  the  lav/,  and  its  vindicator}'  provisions  as  it  respects  existing 
rights  of  property  in  liquor  at  the  time  the  Act  took  effect.  This  is 
purely  a  question  of  legislative  power,  under  the  fundamental  law.  It 
is  needless  to  say  that  the  courts  have  no  concern  with  the  wisdom  or 
expediency  of  the  enactment  to  accomplish  the  beneficent  ends  indi- 
cated b}'  the  title.  The  policy  of  this  government,  from  its  foundation, 
certainly  vindicates  the  political  necessity  and  econom}-  of  stringent 
laws  circumscribing  the  sale  of  spirituous  liquors.  I  entertain  no  doubt 
of  the  constitutional  competenc}*  of  the  legislature  to  prohibit  entirch' 
the  commerce,  within  the  State,  in  liquor  as  a  beverage,  by  laws  pro- 
spective in  their  operation.  If,  in  the  judgment  of  the  legislature,  the 
public  welfare  required  it,  the  future  production,  manufacture,  or  acqui- 
sition of  liquor  might  be  prohibited.  The  sovereign  power  of  the  .State 
in  all  matters  pertaining  to  the  public  good,  the  health,  good  order,  and 
morals  of  the  people,  is  omnipotent.  Laws  intended  to  promote  the 
welfare  of  society  are  within  legislative  discretion,  and  cannot  be  the 
just  subject  of  judicial  animadversion,  except  when  it  is  seen  that 
the  constitutional  guarantees  of  private  property  have  been  invaded. 
The  police  power  is,  of  necessity,  despotic  in  its  character,  commen- 
surate with  the  sovereignty  of  the  State ;  and  individual  rights  of 
property,  beyond  the  express  constitutional  limits,  must  yield  to  its 
exercise.  And  in  emergencies,  it  may  be  exercised  to  the  destniction 
of  property,  without  compensation  to  the  owner,  and  even  without  the 
formality  of  a  legal  investigation.  It  is  upon  this  principle  that  heallli 
and  quarantine  laws  are  established  ;  that  a  building  is  blown  up  to 
arrest  a  conflagration  in  a  populous  town  ;  that  the  public  market  is 
purged  of  infectious  articles  ;  that  merchandise  on  ship-board,  infested 
with  pestilence,  is  cast  into  the  deep,  and  public  nuisances  are  abated. 
It  is  the  public  exigency  which  demands  the  summary  destruction, 
upon  the  maxim  that  the  safety  of  society  is  the  paramount  law.  It  is 
the  application  of  the  personal  right  or  principle  of  self-preservation  to 
the  bod}'  politic.  I  know  of  no  limits  to  the  exercise  of  the  police 
power  vested  in  the  legislature,  except  the  restrictions  contained  in  the 
■written  constitution.      Under  our  system  of  government,  with  co-or- 

1  See  Brown  v.  Md.,  12  Wheat.  419.  —  Ed. 


CHAP.  V.j  WYNEHAMER   V.   THE    PEOPLE.  721 

flinate  branches,  each  independent  within  its  sphere,  and  all  deriving 
their  powers  from  a  common  source,  the  i'lindamental  law,  one  cannot 
exercise  a  supremac}-  over  the  other,  except  as  it  finds  its  warrant  for 
it  in  that  law.  The  judiciar}-  possesses  no  legitimate  authorit}'  over  Acts 
of  the  Legislature,  aside  from  the  constitutional  grant ;  and  even  this 
authority  is  exercised  in  an  indirect  manner,  when  its  powers  are 
appealed  to,  to  carrj-  a  statutory  law  into  effect ;  and  then  onl}'  as  it 
respects  the  individual  rights  of  property  or  person. 

It  is  said  that  this  idea  of  the  omnipotency  of  the  legislature,  aside 
from  the  express  constitutional  restrictions,  is  a  fallacy.  It  is  con- 
ceded that  all  power  emanates  from  the  people,  and  that  the  written 
Constitution  clothes  the  legislature  with  all  the  power  it  possesses. 
But  the  grant  of  power  in  that  instrument  is  general,  of  all  the  legis- 
lative power  of  the  State  ;  what  tliis  is  preciselj',  is  not  and  cannot 
well  be  defined.  Aside  from  the  express  limitations,  it  is  believed  to 
embrace  all  the  common-law  power  which  the  legislature  would  have 
possessed  had  the  fundamental  law  remained,  as  in  England,  a  part  of 
the  unwritten  law  of  the  State.  This  is  by  no  means  an  alarming  propo- 
sition. The  Declaration  of  Rights,  forming  the  guarantee  of  personal 
liberty  and  property  in  the  first  article  of  the  Constitution,  when  con- 
strued according  to  its  full  spirit  and  intent,  is  quite  ample  to  protect 
the  citizen  against  the  unauthorized  encroachments  of  the  legislature  ; 
to  protect  against  all  sumptuary  laws  and  laws  of  kindred  character, 
which  have  not  the  public  good  for  their  object.  I  am  opposed  to  the 
judiciary  attempting  to  set  bounds  to  legislative  authoritv,  or  declaring 
a  statute  invalid  upon  any  fanciful  theor}'  of  higher  law  or  first  prin- 
ciples of  natural  I'ight  outside  the  Constitution.  If  the  courts  ma}' 
imply  limitation,  there  is  no  bound  to  implication  except  judicial  dis- 
cretion, which  must  place  the  courts  above  the  legislature  and  also  the 
Constitution  itself.  This  is  hostile  to  the  theory  of  the  government. 
The  Constitution  is  the  only  standard  for  the  courts  to  determine  the 
question  of  statutory-  validity. 

There  is  no  constitutional  restriction  upon  the  power  of  the  legisla- 
ture in  the   regulation  of  the  sale  or   traffic  in   intoxicating  drinks, 
whether  aflTecting  existing  rights  of  property  in  liquor  or  not.     As  a 
scheme  of  regulation,  the  degree  of  the  limitation  of  the  sale  or  traffic  -/.      -  -^ 
is  a  matter  of  legislative  discretion. |   The  fault  of  the  present  law  is,  <^^y^. 
that  it  does  not  profess  to  be  a  scheme  of  regulation.  <  'rh£re_js_no    ,'^^'vu/'^ '^ 
attempted  discrimlnationHJafween  liquor  owned  at  the  time  the  law  took    -^     ^  vCtt. 
effect  and  that  acquired  afterwards.  7  I  have  reflected  with  mu(Ti  atten- 
tion  to  see  wliether  the  courts  could  not  make  the  disci imination,  for  Ai^^  .ijiiW 
instance,  as  a  question  of  fact,  to  be  ascertained  in  a  given  case,  but  I  ^    -  .L_  • 
have  encountered  the   insurmountable  difficulty,   that   the   legislature  ^^y''^^'''^ 
plainly  intended  that  there  should  be  no  such  distinction.     No  defence    0,/   ^^^^^  Tit 
on  a  trial  could  be  admitted  on  such  ground,  for  the  reason  that  it  /        /ly 

would  be  against  the  manifest  policy  of  the  Act.     It  is  the  intent  of  the    "^^^    ^T^ 
statute  alone  which  the  courts  are  authorized  to  execute. 

VOL.  I.  —  46  Q 


L/L^MA  A/^-vN^iliiiM    /\y-c^«^ 


\./f\\A.' 


[CIIAP.  V. 


V22  C  WYNEHAMER    V.    THE  PEOPLE. 


-ir^     /l^M^i^ 


The  probibitor}'  feature  of  the  law  must,  therefore,  be  regarded  as 
extending  to  all  liquor  in  the  State  at  the  time  the  Act  took  effect.  In 
this  aspect  I  will,  in  a  few  words,  give  my  views  of  its  unconstitution- 
ality as  it  respects  vested  rights  of  property  in  liquor,  under  the  organic 
law,  which  forbids  the  citizen  being  deprived  of  his  property  without 
due  process  of  law.  That  liquor  is  recognized  by  the  law  as  propert}-, 
that  the  Constitution  knows  no  distinction  in  its  guarantees  of  the 
rights  of  property  of  all  kinds,  that  the  constitutionality  of  the  law  is 
to  be  tested  the  same  as  though  it  related  to  some  other  and  perhai)s 
better  species  of  propert}',  is  not  questioned.     The  Constitution  sur- 

IC    iJJl''^-^  rounds  liquor,  as  propert}',  with  the  same  inviolability  as  an}-  other 

J^ "  species  of  property.     There  can  be  no  room,  I  think,  for  difference  of 

\/ydjJAJl      Opinion  as  to  the  meaning  ofthe  phrase,  "due  process  of  law,"  as  used 

0  in  the  Constitution.     It  means  an  ordinar}-  judicial  proceeding.     In  a 

a/yC^  \?  VK.  ci-iminal  case,  an  arraignment,  formal  complaint,  confronting  of  wit- 
nesses, a  trial,  and  regular  conviction  and  judgment.  When  a  for- 
feiture of  propert}'  is  made  a  part  of  the  punishment,  as  in  this  case, 
the  judgment  embracing  it  would,  in  its  effect,  deprive  the  offender  of 
his  propert}' in  the  constitutional  method.  I  think  it  competent  for  the 
legislature  to  declare  a  forfeiture  of  liquor,  which  an  offender  may  have 
in  possession,  as  a  mode  of  punishment ;  and  if  the  law  in  question  was 
in  other  respects  constitutional,  I  should  uphold  the  judgment  of  for- 
feiture in  this  case  as  entire!}'  proper.  But  the  portion  of  the  law 
which  authorizes  the  seizure  and  destruction  of  liquor,  where  tlie  pro- 
secution or  conviction  of  the  owner  is  not  contemplated,  I  should  not 
hesitate  to  pronounce  void,  as  i^roperty  is  thus  destroyed  or  the  citizen 
deprived  of  it  without  process  of  law.  It  is  not  pretended,  nor  can_  it 
be.  that  property  which  is  not  7^er  se  a  nuisance  can  be  annihilated  by 
force  of  a  statute  alone,  or  by  proceeding  in  rem  for  the  punishment  of 
a  personal  offence.  Liquor  is  not  a  nuisance  7Mr  se,  nor  can  it  be  made! 
so  by  a  simple  legislative  declaration.  It  does  not  stand  in  the  cate-/ 
gory  of  common  nuisances  which  of  themselves  endanger  the  welfare  on 
safety  of  society.  It  is  its  use  and  abuse  as  a  beverage  which,  gives  il 
its  offensive  character.  Otherwise  it  is  entirely  inoffensive.  In  m\ 
judgment,  therefore,  it  cannot  be  confiscated  to  prevent  its  misuse,  except 
through  a  prosecution  against  the  owner  in  2^6'>'sonam. 

But  it  is  said  that  this  law  does  not  assume  to  deprive  any  one  of 
his  property  in  liquor  ;  that  the  owner  is  allowed  to  retain  the  unmolested 
custody  and  personal  use  of  it,  according  to  his  pleasure.  It  is  true 
that  the  owner  may  not  be  molested  in  this  enjoyment,  provided  he 
keeps  it  in  his  dwelUng-house,  if  fortunate  enough  to  possess  a  domicil. 
I  apprehend  that  by  a  fair  construction  of  the  law  he  is  forbidden, 
under  a  severe  penalty,  from  keeping  it  elsewhere,  except  for  mechan- 
ical and  other  specified  uses,  although  innocent  of  any  intent  to  sell. 
I  have  examined  the  1st  section  of  the  law  with  care,  to  see  if  it 
could  not  be  construed  in  such  manner  as  to  make  the  keeping  in 
any  place  except  a  dwelling-house,  criminal  only  when  accompanied 


CHAP,  v.]  WYNEHA.MER   V.   THE   PEOPLE.  723 

with  an  intent  to  sell.  But  the  section  cannot  be  so  construed. 
The  language  is  too  clear  to  admit  of  a  doubt  as  to  the  intention 
of  the  legislature.  The  keeping  or  deposit  in  an}'  place,  excei)t  in 
a  dwelling-house,  or  place  where  some  trade  or  business  is  carried  on 
requiring  its  use,  is  prohibited,  and  by  the  4th  section  of  the  Act  such 
keeping  or  deposit  is  a  crime.  Tliis,  certainly,  is  a  most  extraordinary 
provision,  which  must  have  the  effect  to  render  a  person  a  criminal  who 
was  so  unfortunate  as  to  have  a  quantity  of  liquor  on  hand  in  a  for- 
bidden place  at  the  time  the  law  took  etfect,  although  he  had  no  intent 
to  violate  the  law  by  selling.  A  person  thus  circumstanced  would  have 
but  one  of  two  alternatives  to  avoid  criminalit}-,  either  just  before  the 
law  took  effect  to  remove  the  liquor  to  a  dwelling-house,  or  to  a  shop 
for  mechanical  and  other  prescribed  uses,  or  destroj'  it  with  his  own 
hand.  I  can  scarcely  credit  that  the  legislature  designed  the  law  to 
have  this  effect ;  but  no  other  construction  can  be  put  upon  the  lan- 
guage of  the  1st  section  of  tlie  law,  and  we  are  bound  to  suppose,  judi- 
cially, that  the  legislature  intended  what  their  words  import. 

The  law  does  not  even  countenance  the  exportation  of  the  liquor 
after  it  took  effect.  The  plain  design  of  the  law  seems  to  have  been  to 
cut  off  the  liquor  itself,  to  insure  its  destruction,  by  circumscribing  the 
keeping  of  it,  and  authorizing  its  seizure,  if  kept  in  a  forbidden  place, 
or  with  a  criminal  intent  to  sell.  The  entire  right  of  sale,  within  the 
State  at  least,  is  prohibited,  and  in  this,  in  m}'  judgment,  consists  the 
error  of  the  law  as  it  respects  liquor  owned  when  the  law  went  into 
operation.  If  there  had  been  any  right  of  sale  within  tlie  State  pre- 
served, for  instance,  to  a  licensed  vendor,  altlioughof  minor  importance, 
it  would  have  been  sufficient,  perhaps,  to  have  impressed  the  law  with  a 
character  of  regulation,  and  saved  its  validit}'. 

But  the  abolition  of  all  right  of  sale  in  the  State  is  equivalent  to  and 
is  a  substantial  deprivation  of  the  owner  of  his  propert}'.  The  right  of 
sale  is  of  the  ver}^  essence  of  propert}-  in  any  article  of  inerchandise  ; 
it  is  its  chief  charactei'istic ;  take  awaj'  its  vendible  quality  and  the 
article  is  practically  destroyed.  As  applied  to  merchandise  of  any 
description,  this  effect  can  be  judicially  seen.  Even  if  the  law  al- 
lowed exportation,  that  would  be  of  such  minor  importance  as  not  to 
save  the  law  from  the  charge  of  effectually  depriving  the  owner  of  his 
property  in  the  liquor.  It  is  but  of  trifling  value  after  the  entire  domes- 
tic market  is  closed  against  it. 

I  am  unable,  therefore,  to  avoid  the  conclusion  that  the  [)rohibition  in 
the  1st  section  of  the  law  is  invalid,  inasmuch  as  it  makes  no  discrimina- 
tion, nor  allows  the  courts  to  make  any,  but  extends  to  all  liquor, 
irrespective  of  the  time  of  its  acquisition  ;  and  that,  b}'  closing  the 
domestic  or  State  market,  it  in  effect  substantiallj-  deprives  the  owner 
of  liquor,  acquired  before  the  law  took  effect,  of  his  vested  right  of  prop- 
erty therein,  without  due  process  of  law. 

At  the  trial  before  the  police  justice,  the  defendant  offered  bail  for 
his  appearance  before  a  higher  court  having  criminal  jurisdiction.  It 
was  an  error  for  the  court  to  refuse  to  receive  it.     I  am  well  satisfied 


724  WYNEHAMER   V.   THE   PEOPLE.  [CIIAP.  V. 

that  the  defendant  hnd  a  constitutional  right  to  be  tried  b}'  a  common- 
law  jury  of  twelve  men,  and  that  to  this  end  he  should  have  been 
allowed  to  give  bail  to  appear  before  a  tribunal  where  such  a  jury  could 
be  obtained.  .  .  . 

I  am  of  the  opinion,  therefore,  that  the  judgment  of  the  Supreme  Court 
ought  to  be  affirmed.  .   .  . 

[Other  opinions  are  reported,  by  Comstock,  A.  S.  Johnson,  Selden, 
Mitchell,  and  T.  A.  Johnson,  JJ.,  and  a  brief  summary  of  an  opinion 
bv  Denio,  C.  J.     The  reporter  then  adds  the  following  statement :] 

On  deciding  these  cases,  the  court  passed  upon  and  affirmed  the  fol- 
lowing propositions  : 

1.  That  the  prohibitory  Act,  in  its  operation  upon  propertj'  in  in- 
toxicating liquors  existing  in  the  hands  of  an}^  person  within  this  State 
when  the  Act  took  effect,  is  a  violation  of  the  provision  in  the  Consti- 
tution of  this  State  which  declares  that  no  person  shall  be  "deprived 
of  life,  libert}',  or  property,  without  due  process  of  law."  That  the 
various  provisions,  prohibitions,  and  penalties  contained  in  the  Act  do 
substantiall}'  destroy  the  propert}^  in  such  liquors  in  violation  of  the 
terms  and  spirit  of  the  constitutional  provision. 

2.  That  inasmuch  as  the  Act  does  not  discriminate  between  such 
liquors  existing  when  it  took  effect  as  a  law,  and  such  as  might  there- 
after be  acquired  by  importation  or  manufacture,  and  does  not  counte- 
nance or  warrant  an}'  defence  based  upon  the  distinction  referred  to, 
it  cannot  be  sustained  in  respect  to  any  such  liquor,  whether  existing 
at  the  time  the  Act  took  effect  or  acquired  subsequently' ;  although  all 
the  judges  were  of  opinion  that  it  would  be  competent  for  the  legisla- 
ture to  pass  such  an  Act  as  the  one  under  consideration  (except  as  to 
some  of  the  forms  of  proceeding  to  enforce  it),  provided  such  Act  should 
be  plainly-  and  distinctly  prospective  as  to  the  property  on  which  it  should 
operate.  • 

3.  That  the  criminal  proceeding  in  a  court  of  special  sessions 
authorized  by  the  said  Act  is  unconstitutional  and  void  because  the 
accused  is  thereby  deprived  of  the  right  of  trial  by  jury,  guaranteed 
by  the  Constitution. 

Denio,  C.  J.,  A.  S.  Johnson,  Comstock,  Selden,  and  Hubbard,  Js., 
concurred  in  the  foregoing  propositions. 

Mitchell,  J.,  dissented  from  the  first  and  second,  and  concurred  in 
the  third. 

T.  A.  Johnson  and  Wright,  Js.,  dissented  from  all  of  them. 

All  the  jndges,  except  T.  A.  Johnson,  Wright,  and  Mitchell,  were 
in  favor  of  reversing  the  judgment  of  the  Supreme  Court,  and  of  the 
court  of  general  sessions  in  the  case  of  Wynehamer. 

All  the  judges,  except  T.  A.  Johnson  and  Wright,  were  in  favor  of 
affirming  the  judgment  of  the  Supreme  Court,  which  reversed  that  of  the 
court  of  special  sessions  in  the  case  of  Toj-nbee. 

Judgments  accordingly } 

J  Compare  State  v.  Gilman,  33  W.  Va.  146  (1889).  — Ed. 


Jj-'ciMji    J^  /^u^-uX^-  dl  /iu!(JuA.  rv^cKM,  Ci^'tUcCi  rk^i^j^  ■    .  J^^M<  ^ 

CHAP,  v.]  BERTHOLF  V.   O'llEILLY.  725 

BERTHOLF  v.  O'REILLY.  ^^M^^A/^"^ 

New  York  Court  of  Appeals.     1878.     /U^AfVAiZ^buyv^A/^^j^^ 

[74  N.  Y.  509.]  ^^'^^■cJlji/-JL.^y^.j^j:>-^^    • 

Appeal  from  judgment  of  the  General  Term  of  tlie  Supreme  Court, 
in  the  second  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict.     (Reported  below,  8  Hun,  16.) 

The  nature  of  the  action  and  the  facts  are  set  fortli  sufficiently  in  the 
opinion. 

Lewis  E.  Carr,  for  appellant. 

W.  J.  Groo^  for  respondent. 

Andrews,  J.  .  .  .  This  action  is  brought  by  the  plaintiff  against  the 
defendant,  as  the  landlord  of  hotel  premises,  let  with  knowledge  that 
intoxicating  liquors  were  to  be  sold  therein  by  the  lessee,  to  recover  the 
value  of  a  horse  owned  by  the  plaintiff,  which  died  in  consequence  of 
having  been  overdriven  b}'  the  plaintiff's  son  while  in  a  state  of  intoxi- 
cation, produced  in  part  by  li(|uor  sold  him  by  the  lessee  at  his  bar  on 
the  leased  premises.  .  .  . 

All  the  elements  of  the  landlord's  liability  under  the  Act  [the  Civil 
Damage  Act  of  April  29,  1873]  exist  in  this  case,  viz. :  the  leasing 
of  premises  with  knowledge  that  intoxicating  liquors  were  to.  be  sold 
thereon  ;  the  sale  by  the  tenant,  producing  intoxication  ;  and  the  act  of 
the  intoxicated  person,  causing  injury  to  the  propert}'  of  the  plaintiff". 

The  question  we  are  now  to  determine  is  whether  the  legislature  has 
the  power  to  create  a  cause  of  action  for  damages,  in  favor  of  a  person 
injured  in  person  or  propert}'  by  the  act  of  an  intoxicated  person,  against 
the  owner  of  real  property,  whose  only  connection  with  the  injury  is 
that  he  leased  the  premises  where  the  liquor  causing  the  intoxication 
was  sold  or  given  away,  with  knowledge  that  intoxicating  liquors  were 
to  be  sold  thereon. 

To  realize  the  full  force  of  this  inquiry  it  is  to  be  observed  that  the 
leasing  of  premises  to  be  used  as  a  place  for  the  sale  of  liquors  is  a  law- 
ful act,  not  prohibited  by  this  or  an}'  other  statute.  The  liability  of  the 
landlord  is  not  made  to  depend  upon  the  nature  of  the  act  of  the  tenant, 
but  exists  irrespective  of  the  fact  whether  the  sale  or  giving  awa}'  of  the 
liquor  was  lawful  or  unlawful,  that  is,  whether  it  was  authorized  by  the 
license  law  of  the  State,  or  was  made  in  violation  of  that  law.  Nor 
does  the  liability  depend  upon  any  question  of  negligence  of  the  landlord 
in  the  selection  of  the  tenant,  or  of  the  tenant  in  selling  the  liquor. 
Although  the  person  to  whom  liquor  is  sold  is  at  the  time  apparentl}'^ 
a  man  of  sober  habits  and,  so  far  as  the  vendor  knows,  one  whose  appe- 
tite for  strong  drink  is  habitually  controlled  by  his  reason  and  judgment, 
yet  if  it  turns  out  that  the  liquor  sold  causes  or  contributes  to  the  intoxi- 
cation of  the  person  to  whom  the  sale  or  gift  is  made,  under  the  influence 
of  which  he  commits  an  injury  to  person  or  property,  the  seller  and  his 


726  BERTHOLF  V.    OREILLY.  [CIIAP.  V. 

landlord  are  by  the  Act  made  joiiitl}-  and  scvevallj'  responsible.  The 
element  of  care  or  diligence  on  the  part  of  the  seller  or  landlord  does 
not  enter  into  the  question  of  liability.  The  statute  imposes  upon  the 
dealer  and  the  landlord  the  risk  of  any  injury  which  may  be  caused  by 
the  trallic.  It  cannot  be  denied  that  the  liability  sought  to  be  imposed 
by  the  Act  is  of  a  very  sweeping  character  and  may,  in  many  cases, 
entail  severe  pecuniary  liability,  and  its  language  may  include  cases  not 
within  the  real  purpose  of  the  enactment.  The  owner  of  a  building  who 
lets  it  to  be  occupied  for  the  sale  of  general  merchandise,  including 
wines  and  liquors,  ma_y,  under  the  Act,  be  made  liable  for  the  acts  of 
an  intoxicated  person,  where  his  onl}'  fault  is  that  he  leased  the  premises 
for  a  general  business,  including  the  sale  of  intoxicating  liquors,  in  the 
same  wa}'  as  other  merchandise.  The  liability  is  not  restricted  to  the 
results  of  intoxication  from  liquors  sold  or  given  away  to  be  drank  on 
the  premises  of  the  seller.  There  is  no  wixy  by  which  the  owner  of  real 
property*  can  escape  possible  liabilit}-  for  the  results  of  intoxication 
where  he  leases  or  permits  the  occupation  of  his  premises,  with  the 
knowledge  that  the  business  of  the  sale  of  liquors  is  to  be  carried  on  on 
the  premises,  whether  alone  or  in  connection  with  other  merchandise, 
or  whether  they  are  to  be  sold  to  be  drank  on  the  premises  or  to  be  car- 
ried away  and  used  elsewhere.  His  onl}'  absolute  protection  against 
the  liability  imposed  by  the  Act  is  to  be  found  in  not  using  or  permitting 
the  premises  to  be  used  for  the  sale  of  intoxicating  liquors. 

The  question  whether  the  Act  under  consideration  is  a  valid  exercise 
of  legislative  power  is  to  be  determined  solel}^  b}'  reference  to  constitu- 
tional restraints  and  prohibitions.  The  legislative  power  has  no  other 
limitation.  .  .  . 

There  are  two  general  grounds  upon  which  the  Act  in  question  is 
claimed  to  be  unconstitutional ;  Jirst,  that  it  operates  to  restrain  the 
lawful  use  of  real  propert}'  by  the  owner,  inasmuch  as  it  attaches  to  the 
particular  use  a  liabilit}',  which  substantially  amounts  to  a  prohibition 
of  such  use,  and,  as  to  the  seller,  imposes  a  pecuniar}-  responsibilit}', 
which  interferes  with  the  traffic  in  intoxicating  liquors,  although  the 
business  is  authorized  b}'  law  ;  and  second,  that  it  creates  a  right  of 
action  unknown  to  the  common  law,  and  subjects  the  propert}'  of  one 
person  to  be  taken  in  satisfaction  of  injuries  sustained  bj'  another 
remotely  resulting  from  an  act  of  the  person  charged,  which  act  may  be 
neither  negligent  or  wrongful,  but  ma}-  be,  in  all  respects,  in  conformity 
with  law.  The  Act,  it  is  said,  in  effect  authorizes  the  taking  of  piivate 
property  without  "due  process  of  law,"  contrary  to  article  1,  section  6, 
of  the  Constitution,  and  is  also  a  violation  of  the  first  section  of  the 
same  article,  which  declares  that  "no  member  of  this  State  shall  be 
disfranchised,  or  deprived  of  an}'  of  the  rights  or  privileges  secured  to 
any  of  the  citizens  thereof,  unless  by  the  law  of  the  land  or  the  judgment 
of  his  peers."  If  the  Act  is  "due  process  of  law,"  within  the  sixth 
section  of  the  first  article,  it  is  manifest  that  it  is  valid  within  the  other 
section  to  w'hich  reference  is  made. 


CHAP,  v.]  BERTHOLF   V.   O'KEILLY.  727 

The  right  of  the  State  to  regulate  the  traffic  in  intoxicating  liquors, 
within  its  limits,  has  been  exercised  from  the  foundation  of  the  govern- 
ment, and  is  not  open  to  question.  Tlie  State  may  prescribe  the  persons 
by  whom  and  the  conditions  under  which  the  traffic  may  be  carried  on. 
It  may  impose  upon  those  who  act  under  its  license  such  liabilities  and 
penalties  as  in  its  judgment  are  proper  to  secure  societN*  against  the 
dangers  of  the  traffic  and  individuals  against  injuries  committed  by 
intoxicated  persons  under  the  influence  of  or  resulting  from  their 
intoxication. 

The  licensee,  by  accepting  a  license  and  acquiring  thereb}'  a  privilege 
from  the  State  to  engage  in  tlie  traffic,  a  privilege  confined  to  those  who 
are  licensees  and  withheld  from  all  other  citizens,  takes  it  subject  to 
such  conditions  as  the  legislature  may  attach  to  its  exercise.  He  con- 
sents to  be  bound  by  the  conditions  when  he  accepts  the  license,  and 
the  State  is  the  sole  judge  of  the  reasonableness  of  the  conditions  im- 
posed. And  the  power  of  the  legislature,  as  a  part  of  the  excise  sj'stem, 
to  impose  the  liabilities,  imposed  by  the  Act  in  question,  upon  licensed 
dealers,  as  a  condition  of  granting  the  license,  cannot,  we  think,  be 
questioned.  .  .  . 

The  Act  of  1873  cannot,  however,  be  sustained  in  all  its  aspects  upon 
the  theory  that  the  liability  imposed  b}^  the  Act  is  a  condition  of  a 
privilege  granted  b}'  the  State.  This  cannot  be  affirmed  in  respect  of 
the  liability  of  the  landlord,  whose  right  to  lease  his  property  belongs  to 
him,  as  an  incident  to  ownership.  The'  responsibility  imposed  is  not 
confined  to  cases  of  unlawful  sales  of  liquors  or  to  sales  made  by  licensed 
vendors.  Any  person  selling  or  giving  away  liquor,  which  causes  intoxi- 
cation and  consequent  injur}-,  is  made  liable  under  the  Act. 

The  broad  question  is  presented,  whether  the  Act  transcends  the 
limits  of  legislative  power,  in  subjecting  a  landlord  to  liabilit}-,  under 
the  circumstances  mentioned  in  the  Act.  Does  the  Act,  in  effect,  deprive 
him  of  his  property  without  "due  process  of  law,"  in  the  sense  of  the 
Constitution.  If  the  Act  can  be  sustained  as  to  the  landlord,  it  is  clearly 
valid  as  to  all  other  persons  ;  and  its  validity  as  to  the  landlord  is  the 
question  directly  presented  in  this  case. 

We  need  not  enter  into  any  elaborate  discussion  of  the  meaning  of 
the  words  "due  process  of  law."  This  has  been  done  in  numerous 
judicial  decisions.  Thej^  are  held,  under  the  liberal  interpretation  given 
to  them,  to  protect  the  life,  liberty  and  property  of  the  citizens  against 
acts  of  mere  arbitraiy  persons,  in  any  department  of  the  government. 
Denio,  J.,  in  Weste7'velt  v.  Gregg,  12  N.  Y.  212.  These  are  the  funda- 
mental civil  rights,  for  the  security  of  which  society  is  organized,  and 
all  acts  of  legislation  which  contravene  them  are  within  the  prohilntion 
of  the  constitutional  guarantee.  In  judicial  proceedings,  due  process  of 
law  requires  notice,  hearing  and  judgment ;  in  legislative  proceedings, 
conformity  to  the  settled  maxims  of  free  governments,  observance  of 
constitutional  restraints  and  requirements,  and  an  omission  to  exercise 
powers  appertaining  to  the  judicial  or  executive  departments.     It  is  as 


728  BERTHOLF  V.   O'REILLY.  [cIIAP.  V. 

difficult,  as  it  would  be  unwise  to  attempt  an  exact  definition  of  their 
scope.  Their  application,  in  a  particular  case,  must  be  determined 
when  the  question  arises,  and,  in  the  absence  of  exact  piecedeuts,  courts 
must  determine  the  question,  upon  a  consideration  of  the  general  scope 
of  legislative  power,  the  practice  of  governments,  and  in  view  of  the 
conceded  principle  that  individual  rights  may  be  curtailed  and  limited 
to  secure  the  public  welfare  and  the  equal  rights  of  all.  .   .   . 

If  the  legislature  was  impotent  to  deal  with  the  traffic  in  intoxica- 
ting liquors  or  powerless  to  restrain  or  regulate  it  in  the  interest  of 
the  community  at  large,  because  legislation  on  the  subject  might,  to 
some  extent,  interfere  w^ith  the  use  of  propert}'  or  the  prosecution  of 
private  business,  the  legislature  would  be  shorn  of  one  of  its  most  usual 
and  important  functions.  But,  as  we  have  said,  the  right  of  the  legis- 
lature to  regulate  the  traffic  is  shown  by  the  uniform  practice  of  the 
government,  (it  may  not  oiily  regulate,  but  it  may  prohibit  it.  This 
was  declared  after  solemn  argument  and  mature  deliberation,  in  one  of 
the  propositions  adopted  by  this  court  in  Wi/uehamer  x.  The  People^ 
subject  only  to  the  qualification  that  the  prohibition  shall  not  interfere 
with  vested  rights  qf^j2ioi2erty7yrhe  same  principle  was  declared  in  the 
ease  of  3fetropolitan  Board  of  Excise  v.  Barrie^  34  N.  Y.  657  ;  and 
that  the  legislative  power  extends  to  the  entire  prohibition  of  the  traffic 
has  been  recently-  recognized  by  the  Supreme  Court  of  the  United 
States. 

It  is  quite  evident  that  the  Act  of  1873  may  seriouslv  interfere  with 
the  profitable  use  of  real  property'  by  the  owner.  This  is  especiall}'  true 
with  respect  to  a  building  erected  to  be  occupied  as  an  inn  or  hotel,  and 
specially  adapted  to  that  use,  where  the  rental  value  may  largel}'  depend 
upon  the  right  of  the  tenant  to  sell  intoxicating  liquors.  The  owner  of 
such  a  building  may  well  hesitate  to  lease  his  propert}',  when,  by  so 
doing,  he  subjects  himself  to  the  onerous  liabiht}'  imposed  b}-  the  Act. 
The  Act,  in  this  wa}-,  indirecth'  operates  to  restrain  the  absolute  freedom 
of  the  owner  in  the  use  of  his  property,  and  mav  justl}'  be  said  to  impair 
its  value.  But  this  is  not  a  taking  of  his  propert}-,  within  the  meaning 
of  the  Constitution.  He  is  not  deprived  either  of  the  title  or  the  pos- 
session. The  use  of  his  property  for  anj'  other  lawful  purpose  is  unre- 
stricted, and  he  ma}-  let  or  use  it  as  a  place  for  the  sale  of  liquors,  subject 
to  the  liability  which  the  Act  imposes.  The  objection  we  are  now  con- 
sidering would  apply  with  greater  force  to  a  statute  prohibiting,  under 
any  circumstances,  the  traffic  in  intoxicating  liquors,  and  as  such  a 
statute  must  be  conceded  to  be  within  the  legislative  power,  and  would 
not  interfere  with  any  vested  rights  of  the  owner  of  real  property, 
although  absolutely  preventing  the  particular  use,  a  fortiori  the  Act  in 
question  does  not  operate  as  an  unlawful  restraint  upon  the  use  of 
property. 

That  a  statute  impairs  the  value  of  propert}^  does  not  make  it  uncon- 
stitutional. All  propert}'  is  held  subject  to  the  power  of  the  State  to 
regulate  or  control  its  use,  to  secure  the  general  safety  and  the  public 


CHAP,  v.]  BERTHOLF  V.   o'KEILLY.  729 

welfare.  .  .  .  [Here  follow  quotations  from  Com.  v.  Alger,  7  Cush.  84, 
and  Thorpe  v.  B.  c&  E.  R.  E.  Co.,  27  Vt.  140,  and  statements  of  The 
Slaughter-Ilouse  Cases,  16  Wall.  36,  and  Mann  v.  Ill,  94  U.  S.  113.] 

The  right  of  the  legislature  to  control  the  use  and  traffic  in  intoxi- 
cating liquors  being  established,  its  authorit}'  to  impose  liabilities  upon 
those  who  exercise  the  traffic,  or  who  sell  or  give  away  intoxicating 
drinks,  for  consequential  injuries  to  third  persons,  follows  as  a  necessary 
incident.  And  the  Act  of  1873  is  not  invalid  because  it  creates  a  right 
of  action  and  imposes  a  liability  not  known  to  the  common  law.  There 
is  no  such  limit  to  legislative  power.  The  legislature  may  alter  or 
repeal  the  common  law.  It  may  create  new  offences,  enlarge  the  scope 
of  civil  remedies,  and  fasten  responsibilit}-  for  injuries  upon  persons 
against  whom  the  common  law  gives  no  remedy.  We  do  not  mean  that 
the  legislature  may  impose  upon  one  man  liability  for  an  injur}-  suffered 
by  another,  with  which  he  had  no  connection.  But  it  may  change  the 
rule  of  the  common  law,  which  looks  only  to  the  proximate  cause  of  the 
mischief,  in  attaching  legal  responsibility,  and  allow  a  recover}'  to  be 
had  against  those  whose  acts  contributed,  although  remotely,  to  produce 
it.  This  is  what  the  legislature  has  done  in  the  Act  of  1873.  That 
there  is  or  may  be  a  relation,  in  the  nature  of  cause  and  effect,  between 
the  act  of  selling  or  giving  away  intoxicating  liquors,  and  the  injuries 
for  which  a  remed}-  is  given,  is  apparent,  and  upon  this  relation  the 
legislature  has  proceeded  in  enacting  the  law  in  question.  It  is  an 
extension,  by  the  legislature,  of  the  principle  expressed  in  the  maxim, 
Sic  titere  tno  ut  aliejiian  non  Iceda.s,  to  cases  to  which  it  had  not  before 
been  applied,  and  the  propriety  of  such  an  application  is  a  legislative 
and  not  a  judicial  question. 

It  is  said  that  the  statute  imposes  a  liabilit}'  for  the  consequences  of 
a  lawful  act.  But  the  legislature,  having  control  of  the  subject  of  the 
traffic  in  and  use  of  intoxicating  liquors,  may  make  such  regulations  to 
prevent  the  public  evils  and  private  injuries  resulting  from  intoxication 
as  in  its  judgment  are  calculated  to  accomplish  this  end.  Itjnfi}' J5i'o- 
hibij;  the  selling  or  giving  away  of  liquors,  or  it  may,  while  not  inter- 
feriiig  with  the  libert3;^f  sale  or  use,  guard  against  the  dangers  of  an 
indiscriminate  traffic,  and  induce  caution,  on  the  part  of  those  who 
engage  in  the  business,  by  subjecting  them  to  liabilities  for  consequential 
injuries. 

The  Act  of  1873  does  not  deprive  the  seller,  who  is  made  liable  under 
the  Act,  of  his  property,  without  due  process  of  law.  It  authorizes  it 
to  be  appropriated,  in  the  due  course  of  judicial  proceedings,  for  the 
satisfaction  of  injuries  resulting  from  intoxication  caused  by  his  act. 
The  legislature  has  said  that  the  seller  may  be  treated  as  the  author  of 
the  injuries,  and  we  think  this  was  within  the  legislative  power. 

The  liability  imposed  upon  the  landlord  for  the  acts  of  the  tenant  is 
not  a  new  principle  in  legislation.  His  liabilit}'  only  arises  when  he  has 
consented  that  the  premises  may  be  used  as  a  place  for  the  sale  of 
liquors.     He  selects  the  tenant,  and  he  may,  without  violating  any  con- 


730  GIBBONS  V.   OGDEN.  [CHAP.  V. 

stitutional  provision,  be  made  responsible  for  the  tenant's  acts  connected 
■with  the  use  of  the  leased  propert}-.  In  Dobbins  v.  The  United  /States, 
recently  decided  by  the  United  States  Supreme  Court,  a  distillery,  with 
the  real  and  personal  property  used  in  connection  therewith,  had  been 
seized  and  condemned  to  be  forfeited,  for  the  violation,  by  a  lessee,  of 
certain  provisions  of  the  Act  of  Congress,  regulating  the  business  of 
distilling.  No  fraud  was  imputed  to  the  owner  of  the  premises,  and  he 
was  not  charged  with  an}'  complicity  with  the  tenant  in  violating  the 
law.  The  owner  objected  that  his  property  could  not  be  forfeited  for 
the  acts  of  the  tenant,  committed  without  his  knowledge  or  consent. 
But  the  court  affirmed  the  decree  of  condemnation  ;  and,  in  his  opinion, 
Clifford,  J.,  says:  "The  legal  conclusion  must  be  that  the  unlawful 
acts  of  the  distiller  bind  the  owner  of  the  propert}',  in  respect  to  the 
management  of  the  same,  as  much  as  if  the}'  were  committed  by  the 
owner  himself  Power  to  that  effect  the  law  vests  in  him  by  virtue  of 
his  lease  ;  and,  if  he  abuses  his  trust,  it  is  a  matter  to  be  settled  between 
him  and  his  lessor ;  but  the  acts  of  violation  as  to  the  penal  consequences 
to  the  property  are  to  be  considered  just  the  same  as  if  they  were  the 
acts  of  the  owner." 

Our  conclusion  is  that  the  Act  of  1873  is  a  constitutional  enactment. 
It  is  doubtless  an  extreme  exercise  of  legislative  power,  but  we  cannot 
say  that  it  violates  any  express  or  implied  prohibition  of  the  Constitution. 

There  are  some  subordinate  questions  presented,  as  grounds  for  the 
reversal  of  the  judgment.  They  were  considered  by  the  General  Term, 
and  we  concur  in  its  conclusions  in  respect  to  them. 

The  judgment  must  be  affirmed,  with  costs. 

All  concur.  Judgment  affirmed} 

In  Gibbons  v.  Ogden,  9  Wheat.  1,  209  (1824),  Marshall,  C.  J.,  for 
the  court,  said :  "  Since,  however,  in  exercising  the  power  of  regulating 
their  own  purely  internal  affairs,  whether  of  trading  or  police,  the 
States  may  sometimes  enact  laws,  the  validity  of  which  depends  on 
their  interfering  with,  and  being  contrary  to,  an  Act  of  Congress  passed 
in  pursuance  of  the  Constitution,  the  court  will  enter  upon  the  inquiry, 
whether  the  laws  of  New  York,  as  expounded  by  the  highest  tribunal 
of  that  State,  have,  in  their  application  to  this  case,  come  into  collision 
with  an  Act  of  Congress,  and  deprived  a  citizen  of  a  right  to  which  that 
Act  entitles  him.  Should  this  collision  exist,  it  will  be  immaterial 
whether  those  laws  were  passed  in  virtue  of  a  concurrent  power  '  to 
regulate  commerce  with  foreign  nations  and  among  the  several  States,' 
or,  in  virtue  of  a  power  to  regulate  their  domestic  trade  and  police.  In 
one  case  and  the  other,  the  acts  of  New  York  must  yield  to  the  law  of 
Congress  ;  and  the  decision  sustaining  the  privilege  they  confer,  against 
a  right  given  by  a  law  of  the  Union,  must  be  erroneous. 

"  This  opinion  has  been  frequently  expressed  in  this  court,  and  is 

1  Compare  Howes  v.  Maxwell,  157  Mass.  333  — Ed. 


ft 


CHAP,  v.]  UNITED   STATES   V.   HOLLIDAY.  731 

founded  as  well  on  the  nature  of  the  government  as  on  the  words  of  the 
Constitution.  In  argument,  however,  it  has  been  contended  that,  if  a 
law  passed  by  a  State,  in  the  exercise  of  its  acknowledged  sovereignt}', 
comes  into  conflict  with  a  law  passed  b}'  Congress  in  pursuance  of  the 
Constitution,  they  affect  the  subject,  and  each  other,  like  equal  oppos- 
ing powers. 

"  But  the  framers  of  our  Constitution  foresaw  this  state  of  things, 
and  provided  for  it  by  declaring  the  supremacy  not  only  of  itself,  but 
of  the  laws  made  in  pursuance  of  it.  The  nullity  of  any  Act,  inconsist- 
ent with  the  Constitution,  is  produced  b}'  the  declaration  that  the  Con- 
stitution is  the  supreme  law.  The  appropriate  application  of  that  part 
of  the  clause  which  confers  the  same  supremacy  on  laws  and  treaties, 
is  to  such  acts  of  the  State  legislatures  as  do  not  transcend  their  pow- 
ers, but,  though  enacted  in  the  execution  of  acknowledged  State  powers, 
interfere  with,  or  are  contrary  to  the  laws  of  Congress,  made  in  pursu- 
ance of  the  Constitution,  or  some  treaty  made  under  the  authority  of 
the  United  States.  In  every  such  case  the  Act  of  Congress,  or  the 
treaty  vJs_supreme ;  and  the  law  of  the  State,  though  enacted  in  the 
exercise  of  powers  not  controverted,  must  yield  to  it."  i 

^ ^L^^^r 

In  it.  S.  v.  Ilolliday,  3  Wall.  407,  416  (1865),  it  was  a  question  whether        /  f  ^  ? 
an  Act  of  Congress  of  1862,  forbidding  the  sale  of  intoxicating  liquor 
to  an  Indian  under  the  charge  of  an  agent,  anywhere  in  the  United  States, 
was  valid.    Miller,  J.,  for  the  oourt,  in  sustaining  the  enactment,  said  :   ^  -  iL  cJi 
"  We  are  not  furnished  with  an}-  argument  by  either  of  the  defendants 
on  this  branch  of  the  subject,  and  may  not  therefore  be  able  to  state      9^*^^^^ 
with  entire  accuracy  the  position  assumed.    But  we  understand  it  to  be  a 

substantially  this:  that  so  far  as  the  Act  is  intended  to  operate  as  a        "^oA^. 
police  regulation  to  enforce  good  morals  within  the  limits  of  a  State  of  ,,    ^ 

the  Union,  that  power  belongs  exclusively  to  the  State,  and  there  is  no  y-)  otM  '^  A^ 
warrant  in  the  Constitution  for  its  exercise  by  Congress.  <  If  it  is  an    __      '  »aiju>y^ 
attempt  to  regulate  commerce,  then  the  commerce  here  regulated  is  a     "^^'^ 
commerce  wholly'  within  the  State,  among  its  own  inhabitants  or  citi-    ^^'^'^'^ 
zens,  and  is  not  within  the  powers  conferred  on  Congress  by  the  com-  •SU.^'U; 

mercial  clause.  N 

"The  Act  in   question,    although   it  may  partake  of  some  of  the     i^^^^'^^"^^*^^ 
qualities  of  those  acts  passed  by  State  legislatures,  which  have  been    ^,^^^^  U 
referred  to  the  police  powers  of  the  States,  is,  we  think,  still  more  f  •  •  tr 

clearly  entitled  to  be  called  a  regulation  of  commerce.  'Commerce,'  JliA/rwMMj' 
says  Chief  Justice  Marshall,  in  the  opinion  in  Gibbons  v.  Ogclen^  to  >^  CfuO^t^ 
which  we  so  often  turn  with  profit  when  this  clause  of  the  Constitution     ^'  ^      i 

is  under  consideration,  'commerce  undoubtedly  is  traffic,  but  it  is  some-  '^'^^  r^^>^ 
thing  more  :  it  is  intercourse.'  The  law  before  us  professes  to  regulate  ^  Iomj'  /i^ 
traffic  and  intercourse  with  the  Indian  tribes.     It  manifestly  does  both.  .  ^  , 

It  relates  to  buying  and  selling  and  exchanging  commodities,  which  is 
the  essence  of  all  commerce,  and  it  regulates  the  intercourse  between 
the  citizens  of  the  United  States  and  those  tribes,  which  is  another 


branch  of  commerce,  and  a  very  important  one.  ;     ^  '/  V- 


732  IN   RE   RAPIER.      IN   RE   DUPR^.  [CHAP.  V. 

"If  the  Act  under  consideration  is  a  regulation  of  commerce,  as  it 
undoubtedly  is,  does  it  regulate  that  kind  of  commerce  which  is  placed 
within  the  control  of  Congress  by  the  Constitution  ?  The  words  of  that 
instrument  are :  '  Congress  shall  have  power  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  States,  and  with  the  Indian 
tribes.'  Commerce  with  foreign  nations,  without  doubt,  means  com- 
merce between  citizens  of  the  United  States  and  citizens  or  subjects  of 
foreign  governments,  as  individuals.  And  so  commerce  with  the  Indian 
tribes,  means  commerce  with  the  individuals  composing  those  tribes. 
The  Act  before  us  describes  this  precise  kind  of  trafllc  or  commerce, 
and,  therefore,  comes  within  the  terms  of  the  constitutional  provision. 

"  Is  there  anything  in  the  fact  that  this  power  is  to  be  exercised 
within  the  limits  of  a  State,  which  renders  the  Act  regulating  it 
unconstitutional? 

"In  the  same  opinion  to  which  we  have  just  before  referred.  Judge 
Marshall,  in  speaking  of  the  power  to  regulate  commerce  with  foreign 
States,  says,  '  The  power  does  not  stop  at  the  jurisdictional  limits  of 
the  several  States.  It  would  be  a  very  useless  power  if  it  could  not 
pass  those  lines.'  '  If  Congress  has  power  to  regulate  it,  that  power 
must  be  exercised  wherever  the  subject  exists.'  It  follows  from  these 
propositions,  which  seem  to  be  incontrovertible,  that  if  commerce,  or 
traffic,  or  intercourse,  is  carried  on  with  an  Indian  tribe,  or  with  a 
member  of  such  tribe,  it  is  subject  to  be  regulated  by  Congress, 
although  within  the  Umits  of  a  States  The  locality  of  the  traffic  can 
have  nothing  to  do  with  the  power.  The  right  to  exercise  it  in  refer- 
ence to  any  Indian  tribe,  or  an}'  person  who  is  a  member  of  such  tribe, 
is  absolute,  without  reference  to  the  locality  of  the  traffic,  or  the  locality 
of  the  tribe,  or  of  the  member  of  the  tribe  with  w^hom  it  is  carried  on. 
It  is  not,  however,  intended  by  these  remarks  to  imply  that  this  clause 
of  the  Constitution  authorizes  Congress  to  regulate  any  other  commerce, 
originated  and  ended  within  the  limits  of  a  single  State,  than  commerce 
with  the  Indian  tribes," 


__^       In  re  rapier,  Petitioner.     In  re  DUPRE,  Petitionee. 


^riAccaAM--w^       \      Supreme  Court  of  the  United  States.  1892. 

*^^        .  ^  [143  U.  S.  110.] 

y^      '   "   '      These  were  three  applications  to  this  court  for  leave  to  file  peti- 

fivc^.  tions  for  writs  of  habeas  corpus.     Leave  was  gf ranted.  March  9,  1891, 

R  AATtx*-     ^"^1  the  petitions  were  made  returnable  on  the  third  Monday  of  the 

J^-^  next  April.     They  were  duly  returned,  and  were,  on  the  27th  of  April, 

assigned  for  argument  at  the  present  term.     The  prayer  in  each  case 

^  '^^  was  for  a  discharge  from  arrest  for  an   alleged  violation  of  the  pro- 

Uxtt^ou.^    visions  of  section  3894  of  the  Revised  Statutes,   as  amended   by  the 


^^^  dU    Act  of  September  19,  1890,  26  Stat.  465,  c.  908,  generally  known  as       -f-^ 


/?^^  -r't-.^i^.  ^^ 


IN   RE   RAPIER.      IN   RE   DUPRlfi. 

the  Anti-lottery  Act,  which  is  printed  in  the  margin.     [It  is  omitted     ^^^^j^^^^ 

^lere.]  If  -     P '/ 

Rapier  was  arrested  under  an  information  in  the  District  Court  for  'W'UaA'"^ 
the  Southern  District  of  Alabama.  ^\ro  .  (ku 

Dupre  was  arrested  under  twoN  indictments  in  the  Circuit  Court  for  _^^  ,u  j(<. 
the  Eastern  District  of  Louisianft.  _.   " 

The  charge  against  Rapier,  and  against  Dupre  in  one  indictment,   ^'^    '  ^ 
was  the  mailing  of  a  newspaper  containing  an  advertisement  of  tlie  'M^'^^-^-^ 
■    Louisiana  Lottery  ;    and  in  the  other  indictment  against  Dupre  was  /^avvi/<^'t< 
for  the   mailing  of  a  letter  concerning  it.  jUXa-^^^^^ 

As  a  cause  for  the  issue  of  the  writ  Rapier  said,  in  his  application:  J^^„JL 
"Your  petitioner  avers  that  he  is  now  in  the  custody  of  said  marshal  ' 
under  or  by  color  of  the  authority  of  the  United  States  and  in  viola-  '*^'*  P"*^ 
tion  of  the  Constitution  of  the  United  States.  Your  petitioner  is  yj,Ar*>^^  ^ 
advised  that  the  pretended  statute  under  which  he  is  being  prose-  a.a^»--»^^ 
cuted  and  held  is  in  violation  of  the  Constitution  of  the  United  ^^^^.vU/OA 
States,  and  that  the  said  District  Court  is  without  jurisdiction  in  the  (] 

„     "  ~i\j  OCA    C^-'^ 

premises. 

Dupre  in  No.  8  averred  that  he  was  "  deprived  of  his  liberty  under  cvvu^*^ 
and  by  color  of  the  authority  of  the  United  States  and  of  said  court  /k^^,^^^  < 
and  in  violation  of  the  Constitution  of  the  United  States  and  of  his    U  -* 

rights  as  a  citizen  thereof,  because  he  says  that  he  is  advised  and  Uj.  ^^^>^^ 
therefore  avers  that  the  statute  of  the  United  States  under  which  he.^^^^^^  ^^^ 
is  held  and  being  prosecuted  upon  said  indictment  is  unconstitutional,  .   - 

null  and  void,  and  particularly  obnoxious  to  and  in  violation  of  the  ^^  A<Y^ 
First  Amendment  to  said  Constitution,  which  forbids  Congress  passing  jj^ <j,a,kc/£>o 
any  law  abridging  the  freedom  of  the  press,  and  that  therefore  said  ,  U.|-ivt 
Circuit  Court  is  and  was  without  jurisdiction  in  the  premises,  and  he  ^  ^  p-<^^v^ 
is  deprived  of  his  liberty  without  authority  of  law."  yi/^/iuMi.  '^^ 

His  petition  in  No.  9  contained  substantially  the  same  averment.  'vi-xXA-^ 

Mr.  Hannis   Taylor,  for  Rapier.     3Ir.  James  C.   Carter  and  Mr.  " 

Thomas  Semtnes,  for  Dupre.  Mr.  Attorney- General  2iXidi  Mr.  Assist-  '\Jt  <^  '''•^ 
a)it  Attorney-General  Maury.,  for  the  United  States.  /UxXt/s^-**^ 

Mr.  Chief  Justice  Fuller  delivei'ed  the  opinion  of  the  court.  ^        p 

We  are  constrained  b}^   the   circumstances   in  which  we  find  our-  ^-^"^ 
selves  placed  b}-  tlie  illness  and  death  of  Mr.  Justice  Bradley,  to  whom  olurujf'^  '^ 
the  preparation  of  the  opinion  in  these  cases  was  committed,  to  waive   i      ^     t^^ 
an}'  elaboration  of  our  views,  and  confine  ourselves  to  the  expression  '         .      ^ 
of  the  general  grounds  on  which  our  decision  proceeds.  i^vTu  /H/H 

These  are  applications  for  discharge  by  writ  of  habeas  corpus  from.  i^Ut-^  ^^-^-^ 
arrest  for  alleged  violations   of  an  Act  of  Congress,  approved  Sep-       ^\M,,^  aa 
tember  19,  1890,  entitled  "■  An  Act  to  amend  Certain  Sections  of  the     ^ 
Revised   Statutes  relating  to  Lotteries,   and   for   other  Purposes."  26  ii<4  o-toAL' 
Stat.  465,  c.  908.  ^^  ^^^^ 

The  question  for  determination  relates  to  the  constitutionality   of 
section  3894  of  the  Revised  Statutes  as  amended  by  that  Act.     In  "^  /J^l^*-^ 
£!x  parte  Jackson,  96  U.  S.  727,  it  was  held  that  the  power  vested-T^^a;:^  v^  h 


^,4tl^H  e<^vt>^out    CA^-W^ww     iiM^'Jy    -^^  ^..aA^^i^J-cvtU 
734  IN   RE  RAPIER,      IN   RE   DUPRI  [cHAP.  V. 


s/a.^(.A-^ 


■    ; 


in  Congress  to  establish  post-offices  and  post-roads  embraced  the  regu- 
h\tion  of  the  entire  postal  system  of  the  country,  and  that  under  it 
Congress  may  designate  what  ma}'  be  carried  in  the  mail  and  what 
excluded  ;  that  in  excluding  various  articles  from  the  mails  the  object 
of  Congress  is  not  to  interfere  with  the  freedom  of  the  press  or  with 
any  other  rights  of  the  people,  but  to  refuse  the  facilities  for  the  dis- 
tribution of  matter  deemed  injurious  by  Congress  to  the  public  morals  ; 
and  that  the  transportation  in  any  other  way  of  matters  excluded  from 
the  mails  would  not  be  forbidden.  Unless  we  are  prepared  to  overrule 
that  decision,  it  is  decisive  of  the  question  before  us. 

It  is  argued  that  in  Jackson's  case  it  was  not  urged  that  Congress 
had  no  power  to  exclude  lotter}'  matter  from  the  mails  ;  but  it  is  con- 

aSM  ■'y*^ '  ceded  that  the  point  of  want  of  power  was  passed  upon  in  the  opinion. 

^     •-  This  was  necessarily  so,  for  the  real  question  was  the  existence  of  the 


power  and  not  the  defective  exercise  of  it.  And  it  is  a  mistake  to 
suppose  that  the  conclusion  there  expressed  was  not  arrived  at  without 
deliberate  consideration.  It  is  insisted  that  the  express  powers  of 
Congress  are  limited  in  their  exercise  to  the  objects  for  which  they 
were  intrusted,  and  that  in  order  to  justify  Congress  in  exercising  any 
incidental  or  implied  powers  to  carry  into  effect  its  express  author- 
ity,  it  must  appear  that  there  is   some  relation  between  the  means 


employed  and  the  legitimate  end.  This  is  true,  but  while  the  legiti- 
m_ate  _end  of  the  exercise  of  the  power  in  question  is  to  furnish  mail 
facilities  for  the  people  of  the  United  States,  it  is  also  true  that  mail 
facilities  are  not  required  to  be  furnished  for  every  purpose. 

The  States  before  the  Union  was  formed  could  establish  post-offices 
and  post-roads,  and  in  doing  so  could  bring  into  play  the  police  power 

JLc^ys  oM.  in  the  protection  of  their  citizens  from  the  use  of  the  means  so  pro- 
vided for  purposes  supposed  to  exert  a  demoralizing  influence  upon 

rUWtA  the  people.  When  the  power  to  establish  post-offices  and  post-roads 
was  surrendered  to  the  Congress  it  was  as  a  complete  power,  and  the 
grant  carried  with  it  the  right  to  exercise  all  the  powers  which_made 
that  power  effective.  It  is  not  necessarv  that  Congress  should  have 
the  power  to  deal  with  crime  or  immorality  within  the  States  in  order 
to  maintain  that  it  possesses  the  power  to  forbid  the  use  of  the  mails 
in  aid  of  the  perpetration  of  crime  or  immorality . 

The  argument  that  there  is  a  distinction   between  mala  prohihita 
and  mala  in  se,  and  that  Congress  might  forbid  the  use  of  the  mails  in 

[  "tta  '5i^  •   pi'omotion  of  such  acts  as  are  universally  regarded  as  mala  in  se,  in- 
^       eluding    all    such   crimes   as   murder,  arson,   burglary,   etc.,   and   the 

■^,Xut/iA^  offence  of  circulating  obscene  books  and  papers,  but  cannot  do  so  in 
respect  of  other  matters  which  it  might  regard  as  criminal  or  immoral, 
but  which  it  has  no  power  itself  to  prohibit,  involves  a  concession 
which  is  fatal  to  the  contention  of  petitioners,  since  it  would  be  for 
Congress  to  determine  what  are  within  and  what  without  the  rule ; 
but  we  think  there  is  no  room  for  such  a  distinction  here,  and  that  iJ 
must  be  left  to  Congress  in   the  exercise  of  a  sound  discretion  to 


MAX. 


H 


fi^y\.y^^^ 


/^•^JiM/^^ 


OLaiA. 


iAiAyi/V<M\.  "t^^  rvuvAx^^ 


CHAP,  v.]  UNITED   ST  ATI'S    V.    DEWITT.  735 

determine  in  what  manner  it  will  exercise  the  power  it  undoubtedly 
possesses. 

We  cannot  regard  the  rlQlit  to  operate  a  lottery  as  a  fundamental 
right  infringed  by  the  legislation  in  question  ;  nor  are  wc  able  to  see 
that  Congress  can  be  held,  in  its  enactment,  to  have  abridged  the 
freedom  of  the  press.  The  circulation  of  newspapers  is  not  ))rohibited  j 
but  the  oovernment  declines  itself  to  become  an  agent  in  the  circula4 
tion  of  printed  matter  which  it  regards  as  injurious  to  the  people.! 
The  freedom  of  communication  is  not  abridged  within  the  intent  and 
meaning  of  the  constitutional  provision  unless  Congress  is  absolutely 
destitute  of  any  discretion  as  to  what  shall  or  shall  not  be  carried  in 
the  mails,  and  compelled  arbitraril}'  to  assist  in  the  dissemination  of 
matters  condemned  by  its  judgment,  through  the  governmental  agen- 
cies which  it  controls.  That  power  may  be  abused  furnishes  no 
ground  for  a  denial  of  its  existence,  if  government  is  to  be  main- 
tained at  all. 

In  short,  we  do  not  find  sufficient  grounds  in  the  arguments  of 
counsel,  able  and  exhaustive  as  they  have  been,  to  induce  us  to  change 
the  views  already  expressed  in  the  case  to  which  we  have  referred. 
We  adhere  to  the  conclusion  therein  announced. 

The  writs  of  habeas  conncs  prayed  for  will  therefore  be  denied, 
and  the  rules  hereinbefore  entered  discharged. 


UNITED   STATES   v.   DEWITT.        \  .        X  ly^ 

Supreme  Court  of  the  United  States.     1869.  \   .  c»  cv,^      ^X^jj^jl^ 

[9  Wall.A\.-]  \  ^        CaL   0^.^-/^ 

On  certificate  of  division  in  opinion  between  the  judges  of  the  Cir-  ,  '  i  't 

cuit  Court  for  the  Eastern  District  of  Michigan  ;  the  case  being  this  :       |^^v-^rUAA^v^ 

Section  29  of  the  Act  of  March  2d,  1867  (14  Stat,  at  Large,  484),   a/^*^^^  h- 

declares,  JjOu^    ^ 

"  That  no  person  shall  mix  for  sale  naphtha  and  illuminating  oils,  or  '  . 

shall  knowingly  sell  or  keep  for  sale,  or  offer  for  sale  such  mixture,  or  (^^"-a^Mj  " 
shall  sell  or  offer  for  sale  oil  made  from  petroleum  for  illuminating  pur-  /yn^n^csM^ 
poses,  inflammable  at  less  temperature  or  fire-test  than  110  degrees     4 
Fahrenheit ;  and  any  person  so  doing,  shall  be  held  to  be  guilty  of  a  ^^/-z, 
misdemeanor,  and  on  conviction  thereof  by  indictment  or  presentment>/t//^i/V^^'^* 
in  any  court  of  the  United  States  having  competent  jurisdiction,  shall  ,(ycufv^  l( 
be  punished  by  fine,  &c.,  and  imprisonment,"  &c.  ^ 

Under  this  section   one  Dewitt  was  indicted,   the   nflPenre  fiharge(i  «y><4'*"'^^' 
being  the  offering  for  sale,  at  Detroit,  in  Michigan,  oil  made  of  petro-  y^(iitti.<^ 
leum  of  the  description  specified.     There  was  no  allegation  that  the  ^^^i  tU 
sale  was  in  violation  or  evasion  of  any  tax  imposed  on  the  property  . 

sqkl.     It  was  alleged  only  that  the  sale  was  made  contrary  to  law.         />tA^ut^  -^ 


}flf    -      ,         \^     ..    ,r.r^       J\-.    .    C'Oj-h.A      -^Ll      r<t^hAl      r^^^AM^i:  X^Gi.A-^X^ 


jlAJ 


y  <lJ  aatk.    ol-'-^    ^r-  /ix^aj^x  c\     -^^ 


736 


:7 


UNITED   STATES   V.    DEWITT. 


[chap.  \ 


i\cyu/x/^ 


d<i 


To  this  indictment  there  was  a  (Icmuncr ;  and  thereupon  arose  two 
questions,  on  whicli  the  judges  were  opi)osed  in  opinion. 

( 1 )  AVliether  tlie  facts  charaed  in  tiie  indictment  constituted  any 
offence  under  any  valid  and  constitutional  law  of  tlie  United  States  ? 

(2)  Whether  the  aforesaid  section  2!)  of  the  Act  of  March  2d,  1867. 
was  a  valid  and  constitutional  law  of  the  United  States? 

Mr.  Field,  Assistant  Attorney-General,  for  the  United  States. 

Mr.  Wills,  contra. 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

The  questions  certified  resolve  themselves  into  this  :  Has  Congress 
power,  under  the  Constitution,  to  prohibit  trade  within  the  limits  of  a 
Sjate? 

That  Congress  has  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes,  the  Consti- 
tution expressly  declares.  But  this  express  grant  of  power  to  regulate 
commerce  among  the  States  has  alwa3s  been  understood  as  limited  b}' 
its  terms ;  and  as  a  virtual  denial  of  an}-  power  to  interfere  with  the 
internal  trade  and  business  of  the  separate  States ;  except,  indeed,  as 
a  necessary  and  proper  means  for  carrying  into  execution  some  other 
power  expressly  granted  or  vested. 

It  has  been  urged  in  argument  that  the  provision  under  which  this 
indictment  was  framed  is  within  this  exception  ;  tliat  the  prohibition 
of  the  sale  of  the  illuminating  oil  described  in  the  indictment  was  in 
aid  and  support  of  the  internal  revenue  tax  imposed  on  other  illumi- 
nating oils.  And  we  have  been  referred  to  provisions,  supi^osed  to  be 
analogous,  regulating  the  business  of  distilling  liquors,  and  the  mode 
of  packing  various  manufactured  articles ;  but  the  analogy  appears  to 
fail  at  the  essential  point,  for  the  regulations  referred  to  are  restricte d 
to  the  very  articles  which  are  the  subject  of  taxation,  and  are  plainly 
adapted  to  secure  the  collection  of  the  tax  imposed  ;  while,  in  the  case 
before  us,  no  tax  is  imposed  on  the  oils  the  sale  of  which  is  prohibited. 
If  the  prohibition,  therefore,  has  any  relation  to  taxation  at  all,  it  is 
merely  that  of  increasing  the  production  and  sale  of  other  oils,  and, 
consequently,  the  revenue  derived  from  them,  by  excluding  from  the 
m arket  the  particular  kind  described . 

This  consequence  is  too  remote  and  too  uncertain  to  warrant  us  in 
saying  that  the  prohibition  is  an  a]:)propriate  and  plainly  adapted 
means  for  carrying  into  execution  the  power  of  laying  and  collecting 
taxes. 


There  is,  Indeed,  no  reason  for  saying  that  it  was  regarded  by  Con- 
gress as  such  a  means,  except  that  it  is  found  in  an  act  imposing  in- 
ternal duties.  Standing  by  itself,  it  is  plainly  a  regulation  of  police ; 
and  that  it  was  so  considered,  if  not  by  the  Congress  which  enacted  it, 
certainly  by  the  succeeding  Congress,  miiy  be  inferred  from  the  cir- 
cumstance, that  while  all  special  taxes  on  illuminating  oils  were  re- 
ppaled  b}-  the  Act  of  Jul}'  20th,  1868,  which  subjected  distillers  and 
refiners  to  the  tax  on  sales  as  manufacturers,  this  prohibition  was  left 
unrepealed. 

"75         C'^'NAArC 


>^5JL>|'^ 


t5  AW.    a^.uiM^  ^vi;fc^  .WwcA 


l^U^^^jy^J^^V^.i    ^c,\^^<^      C^^A^^ 


u,./rvA>^ 


CHAP,  v.] 


UNITED   STATES   V.   DEWITT. 


■37 


.As  a  police  regulation,  relating  exclusively  to  the  internal  trade  of 
the  States,  it  can  onl3'  have  effect  where  the  legislative  authority  of 
Congress  excludes,  territorially,  all  State  legislation,  as  for  example, 
in  the  District  of  Columbia.  Within  State  limits,  it  can  have  no  con- 
stitutional operation.  This  has  been  so  frequently  declared  b}'  this 
court,  results  so  obviousl}'  from  the  terms  of  the  Constitution,  and  has 
been  so  fully  explained  and  supported  on  former  occasions,  that  we 
think  it  unnecessarv  to  enter  again  upon  the  discussion. 

The  first  question  certified  must,  therefore,  be  answered  in  the 
negative. 

The  second  question  must  also  be  answered  in  the  negative,  except 
so  far  as  the  section  named  operates  within  the  United  States,  but 
without  the  limits  of  any  State.^ 

1  Tn  tlie  License  TaxJUases.  5  Wall.  462.  470  (1866).  Chase.  C.  J.,  for  the  court.  smVl : 


0  : 


no  penalties  under  national  law,  if  he  pays  it." 

In  Patterson  v.  Kij.,  97  U.  S.  501  (1878),  Harlan,  J.,  for  the  court  said  :  "  Whether 
the  final  judgment  of  the  Court  of  Appeals  of  Kentucky  denies  .to  plaintiff  in  error 
any  right  secured  to  her  by  the  Constitution  and  laws  of  the  United  States,  is  the  sole 
question  presented  in  this  case  for  our  determination. 

' '  T hat  court  affirmed  the  iudgment  of  an  inferior  State  court  in , w 
ment  and  trial,  a  fine  of  $250  was  imposed  upon  idaintiff  in  error  for  a  violation  of 
certain  provisions  of  a  Kentucky  .statute,  approved  Feb.  21,  1874,  regulating  the  in- 
si)cction  and  gauging  of  oils  and  fluids,  the  product  of  coal,  petroleum,  or  other  bitu- 
minous substances.  .  .  . 

"  'ilie  specific  offence  charged  in  the  indictment  was  tliat  the  plaintiff  in  error  had 

sold,  within  the   State,  to  one  Davis,  an  oil  known  as  tlie  Aurora  oil,  the  casks  con- 

taiiung  whicii  had  been  previously  branded  by  an  authorized  inspector  witli  the  words 

'unsafe  for  illuminating  purposes.'      That  particular  oil  is   the  same  for  which,  in 

VOL.  I.  — 47 


aJ  /CC^       «/ J       fl/Y^  /  (.xtA.M.>VC  <-\ 


^  CrK.f  i^W.  ^Y  vL^dji^^ 


736 


UNITED    STATES   ??.    DEWITT. 


[CH.VP.  V. 


To  this  iiKlictmcnt  there  was  a  demurrer  ;  and  thereupon  arose  two 
questions,  on  which  the  judges  were  opposed  in  opinion. 

( 1 )  Wlietlier  the  facts  charged  in  the  indictment  constituted  any 
offence  under  any  valid  and  constitutional  law  of  tlie  United  States ? 

(2)  Whether  the  aforesaid  section  29  of  the  Act  of  March  2d,  1867. 
was  a  valid  and  constitutional  law  of  the  United  States? 

31)'.  Field,  Assistant  Attorney-General,  for  the  United  States. 

Mr.  Wills.,  contra. 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

The  questions  certified  resolve  themselves  into  this  :  IIaa_C_ongress 
power,  under  the  Constitution,  to  prohibit  trade  within  the  limits  of  a 
S^te? 

That  Congress  has  power  to  regulate  comraei'ce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes,  the  Consti- 

"   "  o 


This  consequence  is  too  remote  and  too  uncertain  to  warrant  us  in 
saying  that  the  prohibition  is  an  appropriate  and  plainly  adapted 
means  for  carrying  into  execution  the  power  of  laying  and  collecting 
taxes. 


There  is,  indeed,  no  reason  for  saying  that  it  was  regarded  by  Con- 
gress as  such  a  means,  except  that  it  is  found  in  an  act  imposing  in- 
ternal duties.  Standing  by  itself,  it  is  plainly  a  regulation  of  police  ; 
and  that  it  was  so  considered,  if  not  by  the  Congress  which  enacted  it, 
certainly  by  the  succeeding  Congress,  may  be  inferred  from  the  cir- 
cumstance, that  while  all  special  taxes  on  illuminating  oils  were  re- 
poaled  by  the  Act  of  July  20th,  1868,  which  subjected  distillers  and  " 
refiners  to  the  tax  on  sales  as  manufacturers,  this  prohibition  was  left 
unrepealed. 


CHAP,  v.]  UNITED    STATES   V.    DEWITT.  737 

As  a  police  regulation,  relating  exclusively  to  the  internal  trade  of 
the  States,  it  can  onl_y  have  effect  -vvhere  the  legislative  authority  of 
Congress  excludes,  territorially,  all  State  legislation,  as  for  example, 
in  the  District  of  Columbia.  Within  State  limits,  it  can  have  no  con- 
stitutional operation.  This  has  been  so  frequently  declared  by  this 
court,  results  so  obviously  from  the  terms  of  the  Constitution,  and  has 
been  so  fully  explained  and  supported  on  former  occasions,  that  we 
think  it  unnecessarv  to  enter  again  upon  the  discussion. 

The  first  question  certified  must,  therefore,  be  answered  in  the 
negative. 

The  second  question  must  also  be  answered  in  the  negative,  except 
so  far  as  the  section  named  operates  within  the  United  States,  but 
without  the  limits  of  any  State. ^ 

1  Tn  thp.  Llcennp.  Tax  Cases.  5  Wall.  462.  470  (ISCCi).  Chase.  C.  ,T..  for  the-  ronrt.  snid  :  ^    /iVixx^A^ 
"This  series  of  propositious.  and  the  conclusion  in  wliich  it  terminates,  depends  on 
the  postulate  that  a  license  necessarily  confers  an  authority  to  carry  on  the  licensed  cHjj-Ca.  -va-^X 
business.     But  do  the  licenses  reqnired  by  the  Acts  of  Congress  for  selling  liquor  aud         /^«/>/i.<sA 
lottery  tickets  confer  any  authority  whatever  ? 

"  It  is  not  doubted  that  where  Congress  possesses  constitutional  power  to  regulate    CatajU^CL  <^ 
trade  or  intercourse,  it  may  regulate  by  means  of  licenses  as  well  as  in  other  modes ;  ^j        ,. 

and,  in  case  of  such  regulation,  a  license  will  give  to  the  licensee  authority  to  do  wiiat-    0'>^'^~<^^'^^^-^'^*^ 
ever  is  authorized  by  its  terms.  .  .  .  But  very  different  considerations  apply  to  the  ^  /ja/wi 

internal  commerce,  or  domestic  trade  of  the  States.     Over  this  commerce  aud  trade  ,      Q 

Congress  has  no  power  of  regulation  nor   any  direct  control.     This  power  belongs -IjL,     ^tJiJioy- 
exclusively  to  the  States.     No  interference  by  Congress  with  the  business  of  citizens 
transacted  within  a  Statejs  warranted  by  the  Constitution,  except  such  as  is  strictly  '(jxA/X-v/^'^'i'^ 
incidental  to  the  exercise  of  itowers  clearly  granted  to  tlie  legislature.     The  power  to 
authorize  a  business  within  a  State  is  plainly  repugnant  to  the  exclusive  power  of  the   C-avv.'Vi/-^*-'^ 
State  over  the  same  suliject.  .  .  .  If.  therefore,  the  licenses  under  consideration  mus,t    0  ^^  \. 

be  regarded   as  giving  authoritv  to  carry  on  the  brandies  of  business  which  they  U 

license,  it  might  be  difficult,  if  not  impossible,  to  reconcile  the  granting  of  them  with    .OT_'~t>^A^'Jr>-^ 
the  Constitution.  .  .  .  _^  .     ^ 

"  But  it  is  not  necessary  to  regard  these  laws  as  giving  such  authority.     Sp^^  as^^Ux  Xx'^^jC-*' 
they  relate  to  trade  within  State  limits,  they  give  none,  and  can  give  none.     Jhev     .  •        ^^^ 

simply  express  the  purpose  of  the  government  not  to  iuterfere_bv^ penal  proceedings    ^^'^'^ 
with  the  trade  nominally  licensed,  if  the  required  taxes  are  paid.     The  power  to  tax    /JZ^    A.  ''i^' 
is  not  questioned,  nor  the^ power  to  impose  penalties  Tor  non-pavment  of  taxes.     The        j  c/nti 

granting  of  a  license,  therefore,  must  be  regar^ad  as  nQthiiig  more  tlian  a  mere  forin    '''^^'^^-^-^  ^ 

of  impOiiiHg  a  ta:^,  and  Pf  implying  nothing^gept  that  the  license  shall  be  sul)ject_to  j)\^(j^,,^y^j^/^  ra 
no  penalties  under  national  law,  if  he  pays  it.*' 

In  Patterson  v.  Ky.,  97  U.  S.  501  (1878),  Harlax,  J.,  for  the  court  said  :  "  Whether  / 

the  final  judgment  of  the  Court  of  Appeals  of  Kentucky  denies  .to  plaintiff  in  error   "^  t/>   ^  '-^ 
any  right  secured  to  her  by  the  Constitution  and  laws  of  the  United  States,  is  the  sole  .        .  , 

question  presented  in  this  case  for  our  determination.  A,^^!L  a-^.»-«-^ 

"  That  court  affirmed  the  judgment  of  an  inferior  State  court  in  whicli,  upon  indict-  ^j^  -4.  -H      t* 
ment  and  trial,  a  fine  of  $250  was  imposed  upon  plaintiff  in  error  for  a  violation  of  "'WX'^ 
certain  provisions  of  a  Kentucky  statute,  approved  Feb.  21,   1874,  regulating  the  in-  _  tyi^jjXi 

sncction  and  gauging  of  oils  aud  fluids,  the  product  of  coal,  petroleum,  or  other  bitu-  >-*■)- 

minous  substances.  .  .  .  - Ovc'W*-'''^ 

"The  specific  offence  charged  in  the  indictment  was  tiiat  the  plaintiff  in  error  had  .^  a4 

sold,  within  the  State,  to  one  Davis,  an  oil  known  as  the  Aurora  oil,  tiie  casks  con-  'VM7    X^^^'^^ 
taining  which  had  been  previously  branded  by  an  authorized  inspector  witii  the  words  LawIK^^ 

'unsafe  for  illuminating  purposes.'      That  particular  oil  is   the  same  for  which,  in  ^\ 

VOL.  I.  —47  iut  la^v-CUc 


738 


HENDERSON    ET    AL.    V.    MAYOR   OF   N.    Y.    ET   AL,       [ciIAP.  V. 


Ix  Henderson  et  al.  v.  Mayor  of  New  York  et  al.,  92  U.  S.  259 
(1875),  where  ou  a  suit  by  certain  sliip-owners  to  test  the  vahdity  of  a 
statute  of  New  York  relating  to  foreign  immigrants,  this  statute  was 
dccUxrecl  void,  Miller,  J.,  for  the  court,  said:  ''In  the  case  of  The 
Citi/  of  New  York  v.  31iln,  reported  in  11  Pet.  103,  the  question  of  tlie 
constitutionality  of  a  statute  of  the  State  concerning  passengers  in  ves- 
sels coming  to  the  port  of  New  York  was  considered  b}'  this  court,     it 


M  A^   (X. 


1867^ letters-patent  were  granted  to  Henry  C.  Dewitt,  of  whom  the  plaintiff  in  error 
is  the  assignee,  by  assignment  duly  recorded  as  required  by  the  laws  of  the  United 
States.  Upon  the  trial  of  the  case  it  was  agreed  that  the  Aurora  oil  could  not,  by 
any  chemical  combination  described  in  the  i)atent,  be  made  to  conform  to  the  stand- 
ard or  test  reciuired  by  the  Kentucky  statute  as  a  prerequisite  to  the  right,  witliii)  that 
Sj^ate,  to  sell,  or  to  offer  for  sale,  illuminating  oils  of  the  kind  designated. 

"  The  plaintiff  in  error,  as  assignee  of  the  jjatentee,  in  asserting  the  right  to  sell  the 
Aurora  oil  in  any  part  of  the  United  States,  claims  that  no  State  could,  consisteiitlv 
with  the  Federal  Constitution  and  the  laws  of  Congress,  .prevent  or  obstruct  the  exe r- 
(JI a^ut4/U^  ^  '    else  of  that  right,  either  by  express  words  of  prohibition,  or  by  regulations  which  pre- 
scribed tests  to  wiiich  the  patented  article  could  not  be  made  to  conform. 
I  —  "  The  Court  of  Appeals  of  Kentucky  held  this  construction  of  the  Constitution  and 

/»u/    ^^^liX/j-^i/tiJ  the  laws  of  the  United  States  to  be  inadmissible,  and  in  that  opinion  we  concur. 

"  Congress  is  given  power  to  promote  the  progress  of  science  and  the  useful  arts. 

To  that  end  it  mav.  by  all  necessary  and  proper  laws,  secure  to  inventors,  for  limited 

times,  the  exclusive  right  to  their  inventions.     That  power  has  been  exerted  in  the 

various  statutes  prescribing  the  terms  and  conditions  npon  which  letters-patent  may 

be  obtained.     It  is  true  that  letters-patent,  pursuing  the  words  of  the  statute,  do.  Jn 

terms,  grant  to  the  inventor,  his  heirs  and  assigns,  the  exclusive  right  to  make,  use^ 

and  vend  to  others  his  invention  or  discovery,  throughout  the  United  States  and  the 

Territories  thereof.     But,  obviously,  this  right  is  not  granted  or  secured,  without 

reference  to  the  general  powers  which  the  several  States  of  the  Union  unquestionably 

possess   over   their   purely   domestic   affairs,  whether   of   internal   commerce   or   of 

police.  .  .  .  The  Kentucky  statute  under  examination  manifestly  belongs  to  that  class 

Vu/r'  i^iA^A^A.   Qf  legislation.     It  is.  in  the  best  sense,  a  mere  police  regulation,  deemed  essential  for 

JIa^^Ca^  tbe  protection  of  the  lives  and  property  of  citizens.     It  expresses  in  the  _most  solemn. 

/  fo.rm  the  deliberate  judgment  of  the  State  that  burning  fluids  which  ignite  or  perma- 

ei'L^'U  ('^-^''^       nently  burn  at  less  than  a  prescribed  temperature,  are  unsafe  for  illuminating  pur- 

A     cui/it-fvi'-  poses.     Whether  the  policy  thus  pursued  by  the  State  is  wise  or  unwise,  it  is  not  the 

Q       province  of  the  national  authorities  to  determine.     That  belongs  to  each  State,  under 

.    ■'-/    cc-vt  its  own  sense  of  duty,  and  in  view  of  the  provisions  of  its  own  Constitution.     Its 

ijLCU/l     action,  in  those  respects,  is  beyond  the  corrective  power  of  this  court.     That  the 

statute  of  1874  is  a  police  regulation  within  the  meaning  of  the  authorities  is  clear 

from  our  decision  in  United  Slates  v.  Dewitt,  9  Wall.  41.  . 

"  The  Kentucky  statute  being,  then,  an  ordinary  police  regulation  for  the  govern- 
ment of  those  engaged  in  the  internal  commerce  of  that  State,  the  only  remaining 
(luestion  is,  whether,  under  the  operation  of  the  Federal  Constitution  and  the  laws  of 
{ ,'oiigress,  it  is  without  effect  in  cases  where  the  oil,  although  condemned  by  the  State 
as  unsafe  for  illuminating  puriy)scs,  has  been  made  and  prepared  for  sale  in  accord- 

We  are  of  opinion 


ance  witli  a  discoverv  for  which  letters-patent  had  been  granted. 

that  the  right  conferred  upon  the  patentee  and  his  assigns  to  use  and  vend  the  cor- 
poreal thing  or  article,  brought  into  existence  by  the  application  of  the  patented  dis- 
coverv, must  be  exercised  in  subordination  to  the  police  regulations  which  the  State 
j^^    ^  .  established  by  the  statute  of  1874.     It  is  not  to  be  supposed  th.at  Coii<rress  intended 

Ci  vV  ^'*^  to  a_nthori7.e  or  regulate  the  sale,  within  a  State,  of  tangible  personal  property  wtiich 

tliat  State  declares  to  be  unfit  and  unsafe  for  use,  and  by  statute  has  prohibited  from 
being  sold  or  offered  for  sale  within  her  limits." 

Compare  T/We  3/a)^- Cases,  100  U.  S.  82.  — Ed.  ^  ,      jJ^ 

jXtvvf  yvc^Ut     A^i  T\>    Arc   je^\  CA^^<AU^t^    avU^.V\^ 


<■ 


,a,cA^irT?>-A^vn^^^-<^ 


CHAP,  v.]       HENDERSON    ET   AL.    V.   MAYOR   OF   N.    Y.    ET   AL.  739 

was  an  Act  passed  February  11,  1824,  consisting  of  several  sections.  (^  /t{  . 'Z^ , /itet 
The  first  section,  the  only  one  passed  upon  by  the  court,  required  the     -      ^p     . 

master  of  every  ship  or  vessel  arriving  in  the  port  of  New  York  from  ^*^'"~*-X^^^^^ 

an}-  countr}'  out  of  the  United  States,  or  from  an}'  other  State  of  the  ^x  y»-jc.^^ivtt 

United  States,  to  make  report  in  writing,  and  on  oath,  within  twenty-  ^f^^  ^^^ ck^ 
four  hours  after  his  arrival,  to  the  mayor  of  the  city,  of  tlie  name,  place      ^ 

of  birth,   last  legal  settlement,  age,  and  occupation   of  every  person  V^^  mH/wv^ 

brought  as  a  passenger  from  any  country  out  of  the  United  States,  or  A-^  ay^^y^-^-*^ 

from  any  of  the  United  States  into  the  port  of  New  York,  or  into  any  ^^^^..j^jyiJt^M^K 
of  the  United  States,  and  of  all  persons  landed  from  the  ship,  or  put  on  ' 

board,  or  suffered  to  go  on  board,  an}'  other  vessel  during  the  voyage,  'W  *^^  ^^^"^ 

with  intent  of  proceeding  to  the  city  of  New  York.    A  penalty  was  pre-  ^     a^,,^  *X/v, 
scribed  of  seventy-five  dollars  for  each  passenger  not  so  reported,  and     ^      -  n 

for  every  person  whose  name,  place  of  birth,  last  legal  settlement,  age,  ^-^'^'^■''^^•^CiS 

and  occupation  should  be  falsely  reported.  ^^^^  ck/x.  X\jlL 


.'fZ^   <^  ULu^   tft^   ^ -td  ^cu^^  -^^^  "^^^ 


ox,  * 


— ■-> " "1        .«,-^.»~ ..     . T  _-         


/ —  - 

j^\yc^     AMXck  /v-cdUA   JlAA-iU  rZ^J^     C^^vwtL      XmA-   <M^^-^^^      Anr^.-^/^ 


738 


HENDERSON    ET   AL.    V.    MAYOR   OF   N.    Y.    ET   AL.       [cilAP.  V. 


In  Henderson  et  al.  v.  Mayor  of  Ng'.o  York  et  al.,  92  U.  S.  259 
(1875),  where  on  a  suit  by  certain  ship-owners  to  test  the  validity  of  a 
statute  of  New  York  rehiting  to  foreign  immigrants,  this  statute  was 
declared  void,  ]Milleu,  J.,  for  the  court,  said:  "In  the  case  of  The 
Citg  of  New  York  v.  31il?i,  reported  in  11  Pet.  103,  the  question  of  the 
constitutionality  of  a  statute  of  the  State  concerning  passengers  in  ves- 
sels coming  to  the  port  of  New  York  was  considered  b}-  this  court.     It 

\<u(Z-  ,<>t<4^-  1867^ letters-patent  were  granted  to  Henry  C.  Dewitt,  of  whom  the  plaintiff  in  error 
is  the  assignee,  by  a.ssignment  duly  recorded  as  required  by  the  laws  of  the  United 
States.  I'pon  the  trial  of  the  case  it  was  agreed  that  the  Aurora  oil  could  not,  by 
any  chemical  combination  described  in  the  patent,  be  made  to  conform  to  the  stand- 
ard or  test  required  by  the  Kentucky  statute  as  a  prerequisite  to  the  right,  wiiiiin  that 
Sjtate,  to  sell,  or  to  offer  for  sale,  illuminating  oils  of  the  kind  designated. 

"  The  plaintiff  in  error,  as  assignee  of  the  patentee,  in  asserting  the  right  to  sell  the 
Aurora  oil  in  any  part  of  the  United  States,  claims  that  no  State  could,  consisteijtly 
with  the  Federal  Constitution  and  the  laws  of  Congress,  .prevent  or  obstrncf  tli"  "^•'^■•• 


Q.t'1- 


<av-u. 


JU 


i 

I. 


^  vr 


ittu  oiaie,  tne  only  remaininp- 


jXiTr-    «^"^~      Question  is.  whetbpr  ntifio.-  «-v-' 
iiut    t. 


•■AT 

(M\^ 

't' 

^K>>i~ 

^J-n 

J3^f^ 

yj  x.'v^«. 

^. 

4  r 


CHAP,  v.]   HENDERSON  EX  AL.  V.    MAYOR  OF  N.  Y.  ET  AL.       739 

was  an  Act  passed  February  11,  1824,  consisting  of  several  sections.  Cc  M.-IA.'^^^^ 


Tlie  first  section,  the  only  one  passed  upon  by  the  court,  required  the 

master  of  ever}'  ship  or  vessel  arriving  in  the  port  of  New  York  from 

anv  countr}'  out  of  the  United  States,  or  from  any  otlier  State  of  tlie    ^  y»-tA^<xfct 

United  States,  to  make  report  in  writing,  and  on  oath,  within  twent}--   ^r'ys-'iX^ 

four  hours  after  his  arrival,  to  the  mayor  of  tlie  cit}',  of  the  name,  place      ^ 

of  birth,   last  legal  settlement,  age,  and  occupation  of  every  person    V^  iaK/Vv^ 

brought  as  a  passenger  from  any  country  out  of  the  United  States,  or    /i  ^  cj-xv^^xxa^ 

from  an}"  of  the  United  States  into  the  port  of  New  York,  or  into  any    .^^j^^^^^w^^i^vvt 

of  the  United  States,  anil  of  all  persons  landed  from  the  ship,  or  put  on 

board,  or  suffered  to  go  on  board,  any  other  vessel  during  the  voyage,  "VaO^^  '^'^^ 

with  intent  of  proceeding  to  the  city  of  New  York.    A  penalty  was  pre- 


-t 


<Xa/^    ■ca./n. 


scribed  of  seventy-five  dollars  for  each  passenger  not  so  reported,  and     ^      <  n 

for  every  person  whose  name,  place  of  birth,  last  legal  settlement,  age,    ^-^vwva-*^ 
and  occupation  should  be  falsely  reported.  a,<^  cv^»-  Xo«X 

•'  The  other  sections  required  him  to  sjive  bond,  on  the  demand  of  the         /  .   ,, 

mayor,  to  save  harmless  the  city  from  all  expense  of  support  and  main- 
tenance  of  such  passenger,  or  to  return  any  passenger,  deemed  liable    Vy -tAXX/'JX  * 
to  become  a  charge,  to  his  last  place  of  settlement ;  and  required  each   t,     V^jJijixsL 
passenger,  not  a  citizen  of  the  United  States,  to  make  report  of  himself  \ 

to  the  mayor,  stating  his  age,  occupation,  the  name  of  the  vessel  in  j'^-^'"'-^^'-*^ • 
which  he  arrived,  the  place  where  he  landed,  and  name  of  the  com- 
mander of  the  vessel.  We  gather  from  the  report  of  the  case  that  the 
defendant,  Miln,  was  sued  for  the  penalties  claimed  for  refusing  to 
make  the  report  required  in  the  first  section.  A  division  of  opinion 
was  certified  by  the  judges  of  the  Circuit  Court  on  the  question,  whether 
the  Act  assumes  to  regulate  commerce  between  the  port  of  New  York 
and  foreign  ports,  and  is  unconstitutional  and  void. 

"  This  court,  expressly  limiting  its  decision  to  the  first  section  of  the 
Act,  held  that  it  fell  within  the  police  powers  of  the  States,  and  was 
CTOt  in  conflict  with  the  Federal  Constitution. 

"  From  this  decision  Mr.  Justice  Story  dissented,  and  in  his  opinion 
stated  that  Chief  Justice  Marshall,  who  had  died  between  the  first  and 
the  second  argument  of  the  case,  fully  concurred  with  him  in  the  view 
that  the  statute  of  New  York  was  void,  because  it  was  a  regulation  of 
commerce  forbidden  to  the  States. 

"In  the  Passenger  Cases,  reported  in  7  How.  283,  the  branch  of  the    ^a.  \oujw  ^-{j 
statute  not  passed  upon  in  the  preceding  case  came  under  consideration     ,^  qi     vtW* 
in  this  court.     It  was  not  the  same  statute,  but  was  a  law  relating  to        '  Q 
the  marine  hospital  on  Staten  Island.     It  authorized  the  health  com-  -.via^   iM  ^^^ 
missioner  to  demand,  and,  if  not  paid,  to  sue  for  and  recover,  from  the      ^   dtiM  ^\ 
master  of  every  vessel  arriving  in  the  port  of  New  York  from  a  foreign 
port,  one  dollar  and  fiftv  cents  for  each  cabin  ijassengcr,  and  one  dollar    l/</>w^   ^^ 
for  each  steerage  passenger,  mate,  sailor,  or  mariner,  and  from  the  mas-   /LtA, ^'^q*^*' 
ter^of  each  coasting  vessel  twenty-five  cents  for  each  person  on  board.  ^^ 

These  moneys  were  to  be  appropriated  to  the  use  of  the  hospital.  ,  " 

"  The  defendant,  Smith,  who  was  sued  for  the  sum  of  8295  for  re-  j^"-''^^^^'''^ 

^cca    ^Luci  /x;-aMid  IvrtU  r^<:<J^     cx^vcvt^     -W^l-  <M^JL,-^<^     Wvl.'i/^ 


*740  HENDERSON    ET   AL.    V.    MAYOR   OF   N.    Y.    ET   AL.       [CIIAP.  V. 

fusing  to  pay  for  295  stcei-a2.c  ^)as.sc'ngeI•s  on  board  the  British  ship 
'  Ileni-y  Piliss,'  of  which  he  was  master,  clemurred  to  tl>e  declaration  on 
the  ground  tliat  tlie  Act  was  contrary  to  the  Constitution  of  the  United 
States,  and  void.  From  a  .judgment  against  him,  allirnied  in  the  Court 
of  Errors  of  the  State  of  New  Yorlc,  he  sued  out  a  writ  of  error,  on 
whicli  the  question,  was  brought  to  tliis  cou rt. 

"  It  w^as  here  held,  at  the  January  Term,  1849,  that  the  statute  was 
'  repugnant  to  the  Constitution  and  laws  of  the  United  States,  and 
therefore  void.'     7  How\  572. 

' '  Immediately  after  this  decision,  the  State  of  New  York  modified 
her  statute  on  that  subject,  with  a  view,  no  doubt,  to  avoid  the  consti- 
tutional objection  ;  and  amendments  and  alteralions  have  continued  to 
be  made  up  to  the  present  time. 

'■''  As  the  law  now  stands,  the  master  or  owner  of  every  vessel  land- 

tl\^\^  ing  passengers  from  a  foreign  port  is  bound  to  make  a  re|)ort  similar  to 
the  one  recited  in  the  statute  held  to  be  valid  in  the  case  of  New  York 
H  v.  Mi/n  ;  and  on  this  report  the  mayor  is  to  indorse  a  demand  upon 


Jtvi 

aXUXt  [K/o^     the  master  or  owner  that  he  give  a  bond  for  every  passenger  landed  in 

t/wa<.£<  IA/uxaji.-  the  city,  in  the  penal  sum  of  $300,  conditioned  to  indemnify  the  com- 

"i^  xtci.  missioners  of  emigration,  and  every  county,  city,  and  town  in  the  State, 

against  any  expense  for  the  relief  or  support  of  the  person  named  in 

XA/t^<^  (^e^nxX  the  bond  for  four  years  thereafter ;  but  the  owner  or  consignee  may 

(1/3.  to  (^tA/<-       commute  for  such  bond,  and  be  released  from  giving  it,   by  paying, 

jt^^^'i^        within  twenty-four  hours  after  the  landing  of  the  passengers,  the  sum 

of  one  dollar  and  fifty  cents  for  each  one  of  them.     If  neither  the  bond 

(yKc^<rr-         be  given  nor  the  sum  paid  within  the  twenty-four  hours,  a  penalty  of 

14,,  'Ij.  A^         $500  for  each  pauper  is  incurred,  which  is  made  a  lien  on  the  vessel, 

JLia^iuJj       collectible  by  attachment  at  the  suit  of  the  Commissioner  of  Emigration. 

^        «J*^'3oO-     "Conceding  the  authority  of  the   Passenger   Cases,  w4iich   will  be 

'^''^^,  y  more  fully  considered  hereafter,  it  is  argued  that  the  change  in  the  stat- 

4.djcM^<n^'<        ^,te  now  relied  upon  requiring  primarily  a  bond  for  each  passenger 

,^.!<Xm44/ha^    landed,  as  an  indemnity  against  his  becoming  a  future  charge  to  the 

^^^j^i-      State  or  county,  leaving  it  optional  with  the  ship-owner  to  avoid  this 

,  by  paying  a  fixed  sum  for  each  passenger,  takes  it  out  of  the  principle 

<M^u>  ^  £^m-  ^^  (.i^g''gase  of  Smith  v.  Turner,  —  the  Passenger  Case  from  New  York. 

laXU^  ci4^    It  is  said  that  the  statute  in  that  case  was  a  direct  tax  on  the  passen- 

^aJLjl     ger,  since  the  Act  authorized  the  shipmaster  to  collect  it  of  him,  and 

'^  uj Axiul     that  on  that  ground  alone  was  it  held  void  :  while  in  the  present  case 

y\y     the  requirement  of  the   bond   is   but  a  suitable  regulation   under  the 

'^^MJ^f'^        power  of  the  State  to  protect  its  cities  and  towns  from  the  expense  of 

tiu   ^v^-wv    supporting  persons  who  are   paupers  or  diseased,  or  helpless  women 

^  ^^  ^jLt.  and  children,  coming  from  foreign  countries. 

!       'UwL        "  ^^^  whatever  language  a  statute  may  be  framed,  its  purpose  must 

^/y_  j^  j^^vwL   Ijq  determined  by  its  natural  and  reasonable  effect ;  and  if  it  is  appar- 

^^y^  -ti.u>u. -      ent  that  the  object  of  this  statute,  as   judged  by  that  criterion,  is  to 

t     «   -(    1  cL    compel  the  owners  of  vessels  to  pay  a  sum  of  money  for  every  passen- 

j   '^'^■'^^  ger  brought  by  them  from  a  foreign  shore,  and  landed  at  the  port  of 

f     -H.  ,  .^^  ^»^^     /i>../j;yt^<_£_A       a^   Xrfivv^  X/^O.-^     A^iXri.^^^      n.y^v->r-    tuz,    r^X^^^^^^  ^IT  *-^~-^ 


CHAP.  V.I      HP-NrriPUSAM   t^t    at,    oj    xriVOR    op   v    v    pt    at.  7J.1  ' 


HENDEKSON   ET   AL.    V.    MAYOR   OF   N.    Y.   ET   AL. 


741 


New  York,  it  is  as  much  a  tax  on  |)assen<j;ers  if  collected  from  theui, 
or  a  tax  on  the  vessel  or  owners  for  the  exercise  of  the  ri;L4ht  of  laudino; 
their  passengers  in  that  city,  as  was  the  statute  held  void  in  the  Pas- 
sencier  Cases. 

"  To  require  a  heavy  and  almost  impossil)le  condition  to  the  exercise 
of  this  rjoht,  with  the  alternative  of  payment  of  a  small  sum  of  money, 
is.  in  effect,  to  demand  payment  of  that  sum.  To  suppose  that  a  vessel, 
which  once  a  montli  lands  from  three  hundred  to  one  thousand  passen- 
gers', or  from  three  thousand  to  twelve  thousand  per  annum,  will  give 
that  many  bonds  of  §300  with  good  sureties,  with  a  covenant  for  four 
3;^ars,  against  accident,  disease,  or  poverty  of  the  passenger  named  in 
such  bond,  is  absurd,  when  this  can  be  avoided  by  the  payment  of 
one  dollar  and  fifty  cents  collected  of  the  passenger  before  he  embarks 
on  the  vessel. 

"  Such  bonds  would  amount  in  many  instances,  for  every  voyage,  to 
more  than  the  value  of  the  vessel.  The  liabilitj'  on  the  bond  would  be, 
through  a  long  lapse  of  time,  contingent  on  circumstances  which  the 
bondsman  could  neither  foresee  nor  control.  The  cost  of  preparing  the 
bond  and  approving  sureties,  with  the  trouble  incident  to  it  in  each 
case,  is  greater  than  tlie  sum  required  to  be  paid  as  commutation.  It  is 
inevitable,  under  such  a  law,  that  the  money  would  be  paid  for  each 
passenger,  or  the  statute  resisted  or  evaded.     It  is  a  law  in  its  purpose 


Co   C^fuv. 


'^t 


r>~ 


and  effect  imposing  a  tax  on  the  owner  of  the  vessel  for  the  privilege  of  -'-^i2^«,'V<u</ia  . 


lauding  in  New  York  passengers  transported  from  foreign  countries. 

f  '■'■  It  is  said  that  the  purpose  of  the  Act  is  to  protect  the  State  against 
the  consequences  of  the  flood  of  pauperism  immigrating  from  Europe, 

<and  first  landing  in  that  city. 

''     "  But  it  is  a  strange  mode  of  doing  this  to  tax  every  passenger  alike 

^wlio  comes  from  abroad. 

' '  The  man  who  brings  with  him  important  additions  to  the  wealth  of 
the  countr}'.  and  the  man  who  is  perfectly  free  from  disease,  and  brings 
to  aid  the  industry  of  the  country  a  stout  heart  and  a  strong  arm,  are 
as  much  the  subject  of  the  tax  as  the  diseased  i)auper  who  may  become 
the  object  of  the  charity  of  the  city  the  day  after  he  lands  from  the 
vessel. 

'•  No  just  rule  can  make  the  citizen  of  France  landing  from  an  Eng- 
lish vessel  on  our  shore  liable  for  the  support  of  an  English  or  Irish 
pauper  who  lands  at  the  same  time  from  the  same  vessel.  .  .   . 

"  The  accurac}'  of  these  definitions  is  scarcel}'  denied  by  the  advo- 
cates of  the  State  statutes.  But  assuming  that,  in  the  formation  of  our 
government,  certain  powers  necessary  to  the  administration  of  their 
internal  affairs  are  reserved  to  the  States,  and  that  among  these  powers 
are  those  for  the  preservation  of  good  order,  of  the  health  and  comfort 
of  the  citizens,  and  their  protection  against  pauperism  and  against  con- 
tagious and  infectious  diseases,  and  other  matters  of  legislation  of  like 
character,  they  insist  that  the  power  here  exercised  falls  within  this 
class,  and  belongs  rightfully  to  the  States. 


0 


742  HENDERSON   ET   AL.    V.    MAYOIi   OF   N.    Y.    ET   AL,      [ciIAP.  V. 

*^  This  power,  frequently  rcfencd  to  in  the  decisions  of  this  court,  lias 
heeu,  in  general  terms,  somewhat  loosely  called  the  i)olice  power.  It  is 
not  necessary  for  the  course  of  tiiis  discussion  to  attempt  to  define  it 
more  accurately'  than  it  has  been  defined  alread}'.  It  is  not  necessary, 
because  whatever  may  be  the  nature  and  extent  of  that  power,  where 
not  otherwise  restricted,  no  definition  of  it,  and  no  urgency  for  its  use, 
can  authorize  a  State  to  exercise  it  in  regard  to  a  subject-matter  which 
has  been  confided  exclusively  to  the  discretion  of  Congress  by  the 
Constitution. 

"  Nothing  is  gained  in  the  argument  by  calling  it  the  police  power. 
Very  many  statutes,  when  tiie  authorit}'  on  which  their  enactments  rest 
is  examined,  ma}'  be  referred  to  dilferent  sources  of  power,  and  sup- 
ported equall}'  well  under  any  of  them.  A  statute  may  at  the  same 
time  be  an  exercise  of  the  taxiiio;  power  and  of  the  ijower  of  eminent 
domain.  A  statute  punishing  counterfeiting  may  be  for  the  protection 
of  the  private  citizen  against  fraud,  and  a  measure  for  the  protection 
of  the  currency  and  for  the  safet}'  of  the  government  which  issues  it. 
It  must  occur  very  often  that  the  shsiding  which  marks  the  line  between 
one  class  of  legislation  and  another  is  very  nice,  and  not  easily 
distinguishable. 

"But,  however  difficult  this  maybe,  it  is  clear,  from  the  nature  of  our 
complex  form  of  government,  that,  whenever  the  statute  of  a  State 
invades  the  domain  of  legislation  which  belongs  exclusively  to  the  Con- 
gress of  the  United  States,  it  is  void,  no  matter  under  what  class  of 
powers  it  may  fall,  or  how  closely  allied  to  powers  conceded  to  belong 
to  the  States."  ^ 

1  Compare  Chi/  Lung  v.  Freeman  et  ah,  92  U.  S.  275. 

The  vague  and  ill-considered  notions  that  are  widely  entertained  as  to  what  is 
meant  by  the  "police  power,"  maybe  observed  in  certain  misleading  observations  that 
have  a  considerable  currency  ;  e.  ^..(that  the  Federal  government  Jias.  np_  4X)lLce_])ower 
io  the  States ;  that  the  Foui-teenth  Amendment  has  no  relation  to  the  police  power  of 
the  States  ;  that  the  States  have  never  parted  with  the  police  power. 7  But  in  truth,  the 
partition  of  the  total  powers  of  government  which  took  place  when  our  Federal  Consti- 
tution was  adopted,  did  not,  either  in  name  or  in  fact,  proceed  upon  such  lines  as  are 
here  indicated.  How  thoroughlv  the  powers  of  tlie  Federal  government  are  interlaced 
with  those  of  tlie  vStates  as  regards  matters  of  local  police,  mav  be  seen,  for  example, 
in  the  discussions  relating  to  the  regulation  of  foreign  and  interstate  commerce,  and 
commerce  with  the  Indian  tribes.  As  regards  the  Fourteenth  Amendment,  it  had  for 
its^jnain  purjiosc  that  of  cutting  down  the  local  legislative  power  of  tlie  States,' tlieir 
"  police  power."  and  conferring  on  the  general  g(i\ernnicnt  the  right  to  restrain  them 
in  exercising  it.  Under  this  amendment,  indeed,  its  action  is  but  negative.  As  re- 
gards the  affirmative  power  of  the  general  government,  when  it  is  remembered  that 
certain  entire  topics  .are  committed  to  it.  for  example,  those  of  foreign  relations,  the 
taxing  of  imports,  the  post-office,  the  currencv.  bankruptcy,  the  regulation  of  external 
and  interstate  commerce,  it  is  easy  to  see  that  much  of  what  is  understood  bv  the 
"  nnbVe  power,"  is  wrapped  up  in  these  things  :  in  determining,  for  example,  on  the 
admission  or  exclusion  of  foreigners^  in  settling  what  mav  Pass  through  the  mails,  or 
what  goods  shall  come  in  free  and  what  shall  pay  duty.  — I^d. 


CHAP,  v.]  MUNN   V.   ILLINOIS.  743 


MUNN  V.  ILLINOIS.  X*-^:)  ^^^-^  •   o*^-^^Ua.^ 


Supreme  Court  of  the  United  States.     187G\   .    .  ^  i         -  . 

Error  to  the    Supreme  Court  of  the   State  of  Illinois.  .  .   .   [The  ^JL^  kmJ:^ 

Constitution  of  lUiiiois  of  1870,  art.  xiii.   s.  1,  declared  all  elevators,      .    .  -^ 

where  grain   or  other  property  is  stored  for   a   compensation,  to  be~^'''''"^^t^ 

public  warehouses;  s.  2,  required  in  places  of  not  less  than  one  hun-    y^-r>f^-^ ^    ^>^ 

drcd  thousand  inhabitants,  the  making  under  oath  and  public  posting   aJvw;:fj   h^ 

and  filing  of  certain  statements  as  to  the  amount  and  kind  of  grain  .  /       * 

or  other  property  stored,  and  warehouse  receipts  issued  and  outstand-  < 

ing,   and   the  daih'  noting  of  changes   in   the  quantit}'    and  grade  of  "JLmm^l*.  \» 

grain  ;  and  forbade  the  mixing  of  different  grades  without  the  owners'   (V^.vd'w^'i-  / 

consent;   s.  3,  secured   the  owner  of  stored   property  liberty  to   ex-  4jl\J^ 

amine  it,  and  the  warehouse  books  and  records  relating  to  it ;  s.  4,  bound  ''"^'-^    _ 

common  carriers  to  weigh  or  measure  grain  where  shipped,  and  to  re-   vxa^^--*''*'''^^ 

ceipt  for  it ;    and  made  them  responsible  for  delivering   it   all ;   s.  5,    C\ji,^M/\.-iX\ 

required  railroad  companies  to  deliver  grain  directly  to  the  consignee,    r^^^,,jt£^j,ycdb^ 

if  he  could  be  reached  by  any  track  which  they  could  use,  and  required  .         /^ 

them  to  allow  connections  with  their  tracks,  for  such  purposes  ;  ss.  G  and   3^"?^*^ 

7  made  it  the  duty  of  the  legislature  to  pass  all  necessar}'  laws   to  .^v^a.A_i  "-^-^ 

prevent  the  issue  of  fraudulent  warehouse  receipts,  and  to  give  effect  to   jt^,.^^^^^*^^^-* 

this  article  of  the  Constitution,  and  for  the  inspection  of  grain  and  the 

'■  °  y\jL '^v'^'-*'^^-'''^ 

protection  of  the  producers,  shippers,  and  receivers  of  grain  and  produce.  U  ^ 

A  statute  of  Illinois,  approved  April  25,  1871,  divided  warehouses  into     jLa-«xa-'-^^^'*  ^ 

classes  A,  B,  and  C  ;  and  required  the  keepers  of  warehouses  of  class  A,    ^i     \^„jJ^l^- 

to  qualify  by  taking  out  a  license,  which  should  be  revocable  by  the  court       ,     Vj>  ^.a 

granting  it  upon  a  summar}'  proceeding,  on  complaint  and  satisfactory'  "'^'"p^     ^J 

proof.     The  licensee  was  required  to  file  a  bond  for  the  performance  of   z;^^,,,^   \V-x 

his  dut}',  with  a  surety  in  the  sum  of  $10,000.     A  penalty  of  $100  ^  j  ^    ^      ^ 

da}'  was  imposed  for  carrying  on  the  business  without  a  license.     Ware-  '^      ^     ^ 

housemen  of  class  A  were  required  j'earlj',  during  the  first  week  in     vw'vOCcvt'Vw 

Januar}',  to  publish  the  rates  for  the  storage  of  grain  for  the  coming     ^  i      xo<j^^ 

3'ear,  and  these  werenot  to  be  increased  during  the  year,  — with  certain  ^ 

exceptions.     A  maximum  charge  was  fixed  for  storing  and  handling  grain    i^^^-^  -^«-^^-^-V 

of  2  cents  a  bushel,  for  the  first  thirt}'  days ;  and  for  each  fifteen  days .  ^-X/itJw    Kkto. 

or  less  afterwards,  one   half  of  one  per  cent  a  bushel;  with  certain  /_«^<<    o^a^ 

variations.]  o 

On  the  twentv-ninth  day  of  .June,  1872,  an  information  was  filed  in     VV\«  "^  *. 

the  Criminal  Court  of  Cook  County,  111.,  against  Munn  &  Scott,  alleging  jjjyi/ux^  a^ 

that  they  were,  on  the  twenty-eighth  dav  of  June.  1872., in.  the  fit}-  of 

Chicago,  in  said  county,  the  managers  and  lessees  of  a  public  wareliouse,    ^'^'^  ^ 

known  as  the  "North-western  Elevator."  in  which  they  then  and  there     rl,  a.  np«-*^ 

stored  grain  in  bulk,  and  mixed  the  grain  of  different  owners  together  J  ^w. 


irvww..A^      ^^      ^J^   ^^   ^         ^^^^^^  ^    ILLINOIS.  [CHAP.  V. 

,  J     in  said   warehouse ;  that  the  warehouse  was   located   in   the   cit3'  of 

Chicago,   which   contained  more  than  one  hundred   thousand  inliabi- 
•'~^-*'^^^"*^^         tants  ;   that  they  uulawl'uUv  transacted  tlic  business  of  i)ublic  ware- 
ti/\ji/iA-  '        housemen,  as  aforesaid,  williout  procuring  a  license  from  tlie  Circuit 
Court  of  said  county,  permitting  tliem  to  transact  business  as  pul)lic 
^^"^"^         warehousemen,  under  tlie  laws  of  the  State. 
yi^f*-^^  To  this  niformation  a  plea  of  not  guilty  was  interposed. 

XU  a.  y^i^M^Vvom  an  agreed  statement  of  facts,  made  a  part  of  the  record,  it 
appears  that  Munn  &  Scott  leased  of  tlie  owner,  in  1862,  the  ground 
occupied   by    tlie     ^' North-western    Ellevator/'    and    erected    thereon 
^  \x^C^x-     the  grain  warehouse  or  elevator  in  that  year,  with  their  own  capital 
XtjL.^u   ^^*»-*  ^""-^  means  ;  that  they  ever  since  carried  on,  in  said  elevator,  the  busi- 
ness of  storing  and  handling  grain  for  hire,  for  which  they  charged  and 
•*■     -^ ^^-"-"-^^    received,  as  a  compensation,  the  rates  of  storage  which  had  been,  from 
■v\*^\  t^       year  to  year,  agreed  upon  and  established  by  the  different  elevators  and 
lHjb^  ti^t^ warehouses  in  the  city  of  Chicago,  and  published  in  one  or  more  news- 
papers printed  in  said  city,  in  the  month  of  January  in  each  year,  as 
ti  XJr-  (Mf<^  the  established  rates  for  the  year  then  next  ensuing  such  publication. 
Jl^l^.On  the  twenty-eightli  day  of  June,  1872,  Munn  &  Scott  were  the  man- 
V       "  agers  and  proprietors  of  the  grain  warehouse  known  as  "  The  North- 

"^   0^  western  Elevator,"  in  Chicago,  111.,  wherein  grain  of  different  owners 

,^M^,^/uL^         was  stored  in  bulk  and  mixed  together  ;  and  they  then  and  there  carried 
^.^.^  on   the  business  of  receiving,  storing,  and  delivering  grain  for  hire, 

■    '         without  having  taken  a  license  from  the  Circuit  Court  of  Cook  County, 
"^^^^  permitting  them,   as  managers,   to  transact  business  as  public  ware- 

^<^\i/^^  housemen,  and  without  having  filed  with  the  clerk  of  the  Circuit  Court 

tccC ,  t£uJ.  a  bond  to  the  people  of  the  State  of  Illinois,  as  required  by  sects.  3 
J^  it-AC'--'.-  and  4  of  the  Act  of  April  25,  1871.  The  city  of  Chicago,  then,  and  for 
1  c  '^  more  than  two  years  before,  had  more  than  one  hundred  thousand  in- 
habitants. Munn  &  Scott  had  stored  and  mixed  grain  of  different 
U.  |t^^--«"  owners  together,  only  by  and  with  the  express  consent  and  permission 
e^jdi-  of  such  owners,  or  of  the  consignee  of  such  grain,  they  having  agreed 

that  the  compensation  should  be  the  published  rates  of  storage. 
/  Munn  &  Scott  had  complied  in  all  respects  with  said  Act,  except  in 

;vHW*  1^      two  particulars :  first,  they  had  not  taken  out  a  license,  nor  given  a 
/ijC  ^  '^         b»"^^'  as  required  by  sects.  3  and  4  ;  and,_  second,.  Uiey  had  charged  for 
V  storage   and  handling  grain  the    rates   established    and   published   in 

l^M/vU'^A         January,  1872,which  w-ere  higher  than  those  fixed  by  sect.  15. 
i/l.-iAX^l  /  ^^^     The  defendants  were  found  guilty,  and  fined  $100. 

f.^  -  '^^®  judgment  of  the  Criminal  Court  of  Cook  County  having  been 
'^^  '^      /T    afidrmed  by  the  Supreme  Court  of  the  State,  Munn  &  Scott  sued  out 
iZct/UM-~    this  writ,  and  assign  for  error  :  — 
f-'      Jl  1.  Sects.   3,  4,  5,  and   15  of  the   statute   are  unconstitutional  and 

[T /I       void. 
.Ct^MA  ^  2.   Said  sections  are  repugnant  to  the  third  clause  of  sect.  8  of  art.  1, 

jU,4jt?V3.        and  the  sixth  clause  of  sect.  9,  art.  1,  of  the  Constitution  of  the  United 
^  States,  and  to  the  Fifth  and  P^ourteenth  Amendments. 


Ttw^ 


CHAP,  v.] 


MUNN  V.   ILLINOIS. 


745_  (7,^  Ua 
John  iV!  Jewett^  for  the 


J/r.    ir.  C.   Goudy^  with  whom  was  il// 
plaintiffs  in  error. 

Mr.  James  K.  Edsall^  Attorney-General  of  Illinois,  contra. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

The  question  to  be  determined  in  this  case  is  whether  the  General 
Assembly  of  Illinois  can,  under  the  limitations  upon  the  legislativ e 
power  of  the  States  imposed  by  the  Constitution  of  tlic  United  States , 
fix  by  law  the  maximum  of  charges  for  the  storage  of  grain  in  ware- 
houses at  Chicago  and  other  places  in  the  State  having  not  less  than 
one  hundred  thousand  inhabitants,  "in  which  grain  is  stored  in  bulk, 
and  in  which  the  grain  of  ditferent  owners  is  mixed  together,  or  in 
which  grain  is  stored  in  such  a  manner  that  the  identity  of  different 
lots  or  parcels  cannot  be  accurately  preserved." 

It  is  claimed  that  such  a  law  is  repugnant  — 

1.  To  that  part  of  sect.  8,  art.  1,  of  the  Constitution  of  the  United 
States  which  confers  upon  Congress  the  power  ''  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States  ;  " 

2.  To  that  part  of  sect.  9  of  the  same  article  which  provides  that  "no 
preference  shall  be  given  by  any  regulation  of  commerce  or  revenue  to 
the  ports  of  one  State  over  those  of  another ;  "  and 

3.  To  that  part  of  amendment  14  which  ordains  that  no  State  shall 
"deprive  any  person  of  life,  liberty,  or  property,  without  due  process 
of  law,  nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection  of  the  laws." 


o-ft 


We  will  consider  the  last  of  these  objections  first. 
Every  statute  is  presumed  to  be  constitutional. 


The  courts  oug-ht 


not  to  declare  one  to  be  unconstitutional,  unless  it  is  clearly  so.     If  there 


is  doubt,  the  expressed  will  of  the  legislature  should  be  sustained. 

The  Constitution  contains  no  definition  of  the  word  "deprive,"  as 
used  in  the  Fourteenth  Amendment.  To  determine  its  signification, 
therefore,  it  is  necessar}-  to  ascertain  the  effect  which  usage  has  given 
it,  when  employed  in  the  same  or  a  like  connection. 

While  this  provision  of  the  amendment  is  new  in  the  Constitution  of 
the  United  States,  as  a  limitation  upon  the  powers  of  the  States,  it  is  C^J 
old  as  a  principle  of  civilized  government.  It  is  found  in  Magna  Charta, 
and,  in  substance  if  not  in  form,  in  nearly  or  quite  all  the  constitutions 
that  have  been  from  time  to  time  adopted  by  the  several  States  of  the 
Union.     By  the  Fifth  Amendment,  it  was  introduced  into  the  Consti-       ^  ^ 

tution  of  the  United  States  as  a  limitation  upon  the  powers  of  the  nyniti'lr  m<^ 
national  government,  and  by  the  Fourteenth,  as  a  guarantee  against     'j,  hi. 

any  encroachment  upon  an  acknowledged  right  of  citizenship  by  the  leg-   iWiinxf^    ^ 
islatures  of  the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their  govern- 
ment. They  retained  for  the  purposes  of  government  all  the  powers  of 
the  British  Parliament,  and  through  their  jState  constitutions,  or  other 
forms  of  social  compact,  undertook  to  give  practical  effect  to  such  as  /txtu/v^r^^^^ 


4y  C/ccija 


n 


iZ^  a~*~^ 


tMMyX. 


CU.  74G  .,  MUNX   V.   ILLINOIS.  [CHAP.  V. 


if 


A^lyix^       the}'  deemed  iiecessaiy  for  the  common  good  and  the  sccurit}-  of  life 

7,,  ^^      and  propert}'.     All  the  powers  which  Xhay  retained  they  committed  to 

,  their  respective  States,  unless  in  express  terms  or  by  implication  re- 

tt<^  served  to  themselves.     Subsequent!}',  when  it  was  found  neccssarj'  to 

U^IcJmAJL  establish  a  national  government  for  national  purposes,  a  part  of  the 

powers  of  the  States  and  of  the  people  of  the  States  was  granted  to  the 

0  tixC^       United  States  and  the  people  of  the  United  States.     This  grant  operated 

as  a  further  limitation  upon  the  powers  of  the  States,  so  that  now  the 

'\iv^  governments  of  the  States  possess  all  the  powers  of  the  Parliament  of 

r/    u  iuU-    England,  except  such  as  have  been  delegated  to  the  United  States  or 

u  reserved  b}-  the  people.     The  reservations  by  the  people  are  shown  in 

/  y  the  prohibitions  of  the  constitutions. 

ryi<uX\^  When  one  becomes  a  member  of  societ}',  he  necessarilv  parts  with 

some  rights  or  privileges  which,  as  an  individual  not  affected  b^-  his 

relations  to  others,  he  might  retain.     "A  bodj' politic,"  as  aptly  de- 

'^'^'^  fined  in  the  preamble  of  the  Constitution  of  Massachusetts,  "  is  a  social 

1  ^  y-^j^^ compact  b}' which  the  whole  people  covenants  with  each  citizen,  and 
^^^"^  .  each  citizen  with  the  whole  people,  that  all  shall  be  governed  by  cer- 
;.  'iMlAX      tain  laws  for  the  common  good."     This  does  not  confer  power  upon  the 

JL     whole  people  to  control  rights  which  are  purely  and  exclusivel}'  private 

^    "^^     {Thorpe  \.  B.  &  V.  Railroad  Co.,  27  Vt.  143) ;  but  it  does  authorize 

UJA^  ^     the  establishment  of  laws  requiring  each  citizen  to  so  conduct  himself, 

and  so  use  his  own  property,  as  not  unnecessarih'  to  injure  another. 

^■^^'^■^^^^■^^^  This  is  the  ver}'  essence  of  government,  and  has  found  expression  in 

/f  r\4X.a,^i     the  maxim  Sic  utere  tuo  ut  alienum  non   Imdas.     From  this  source 

^      come  the  police  powers,  which,  as  was  said  b}'  Mr.  Chief  Justice  Taney 

/it/uAtU    jj^  ^jjg  _Lice}ise  Cases,  5  How.  583,  "  are  nothing  more  or  less  than  the 

ljL  powers  of  government  inherent  in  ever}'  sovereignty,  .  .  .  that  is  to  sa}', 

^^  .  .  .  the  power  to  govern  men  and  things."     Under  these  powers  the 

(/f/zuUlU^^    government  regulates  the  conduct  of  its  citizens  one  towards  another. 

^  and  the  manner  in  which  each  shall  use  his  own  property,  when  such 

^^  ll^      regulation  becomes  necessary  for  the  public  good.     In  their  exercise  it 

^u/h.'itu'MA  has  been  customary  in  England  from  time  immemorial,  and  in  this 

'        /      countr}'  from  its  first  colonization,  to  regulate  ferries,  common  carriers, 

<M^^   ^^*-'^'  hackmen,  bakers,  millers,  wharfingers,  innkeepers,  &c.,  and  in  so  doing 

-vMi^  *{  '^     to  fix  a  maximum  of  charge  to  be  made  for  services  rendered,  accom - 

,AhCjuc  ipodations  furnished,  and  articles  sold.     To  this  day,  statutes  are  to  be 

IXjusj^yik.  ■      found  in  man}'  of  the  States  upon  some  or  ail  these  subjects;  and  we 

think  it  has  never  vet  been  successfully  contended  that  such  legislation 

r'-f-D    came  within  any  of  the  constitutional  prohibitions  against  interference 

with  private  property.     With  the  Fifth  Amendment  in  force,  Congress, 

3^  in  1820,  conferred  power  upon  the  city  of  Washington   "to  regulate 

.   .  .  the  rates  of  wharfage  at  private  wharves,  .  .  .  the  sweeping  of 

chimneys,  and  to  fix  the  rates  of  fees  therefor,  .  .  .  and  the  weight  and 

"^   quality  of  bread,"  3  Stat.  587,  sect.   7;   and,  in  1848,    "  to  make  all 

/  necessary  regulations  respecting  hackney  carriages  and  the  rates  of  fare 

/^.^        of  the  same,  and  the  rates  of  hauling  by  cartmen,  wagoners,  carmen, 

^(t^  ia-^>^T    kAAt/Cfc,  W  /LaZJ-^  xa.'K-     0^^--^  l^aA  .^^-^ 


li/f 


..  l..C<^»^' 


'^luXjlA 


. /U        ^    ,       /w^."    .^       Vn.hjL*^^     AA^^ 


CHAP.V.]  MUNN   V.   ILLINOIS 


<^^x<2jxtf4Nv  c^  U  vcjtaA 


and  draymen,  and  the  rates  of  commission  of  auctioneers,"  9  Id.  224, 
sect.  2. 

From  this  it  is  apuavcnt  that,  down  to  the  time  of  tlie  adoption  of  the 
Fourteenth  Amendment,  it  was  not  supposed  that  statutes  rcoiilatino; 
the  use,  or  even  the  price  of  the  use,  of  private  property  necessarily 
deprived  an  owner  of  his  property  without  due  ])roccss  of  law.  Under 
some  circumstances  they  may,  but  not  under  all.  The  amendment 
does  not  change  the  law  in  this  particular :  it  simply  prevents  the 
States  from  doing  that  which  will  operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this  power 
of  regulation  rests,  in  order  that  we  may  determine  what  is  within  and 
what  without  its  operative  effect.  Looking,  then,  to  the  common  law, 
from  whence  came  the  right  which  the  Constitution  protects,  we  find 
that  when  private  property  is  "■  affected  with  a  publicjjiterest,  it  ceases 
to  be  Juris  jirivati  only."  This  was  said  by  Lord  Chief  Justice  Hale 
more  than  two  hundred  years  ago,  in  his  treatise  De  Portibiis  Maris, 
1  Harg.  Law  Tracts,  78,  and  has  been  accepted  without  objection  as  an 
essential  element  in  the  law  of  property  ever  since.  Property  does  be- 
come clothed  with  a  public  interest  when  used  in  a  manner  to  make  it 
of  public  consequence,  and  affect  the  community  at  large.  When, 
til erefore,  one  devotes  his  property  to  a  use  ni  wliicii  tiic  ])ublic  has  an 
interest,  he,  in  effect,  grants  to  the  public  an  interest  in  that  use,  and 
must  submit  to  be  controlled  by  the  i)ublic  for  the  common  good,  to  the 
extent  of  the  interest. he  has  thus  created.  He  may  withdraw  his  grant  /?  -  't^Ai^ 
by  ctiscontinumg  the  use  ;  but,  so  long  as  tie  maintains  the  use,  he  must 
submit  to   the  control.  . 


[Here  follow  passages  from  Sir  Matthew 


Hale's  writings,  as  to  ferries  and  wharves.] 

This  statement  of  the  law  by  Lord  Hale  was  cited  with  approbation 
and  acted  upon  by  Lord  Kenyon  at  the  beginning  of  the  present  cen- 
tur}',  in  Jiolt  v.  Stennett,  8  T.  H.  606. 

And  the  same  has  been  held  as  to  warehouses  and  warehousemen. 
In  Aldnutt  v.  IngUs,  12  East,  527,  decided  in  1810,  it  appeared  that  the 
London  Dock  Compau}'  had  built  warehouses  in  which  wines  were  taken 
in  store  at  such  rates  of  charge  as  the  compan}-  and  the  owners  might 
agree  upon.  Afterwards  the  companj*  obtained  authorit}-,  under  the 
general  warehousing  Act,  to  receive  wines  from  importers  before  the 
duties  upon  the  importation  were  paid  ;  and  the  question  was,  whether 
the}'  could  charge  arbitrar}-  rates  for  such  storage,  or  must  be  content 
with  a  reasonable  compensation.  .  .  .  [Here  follow  long  quotations 
from  the  opinions  in  this  case,  in  which  it  is  held  that  the  charges  must 
be  reasonable.] 

In  later  times,  the  same  principle  came  under  consideration  in  the 
Supreme  Court  of  Alabama.  That  court  was  called  upon,  in  1841 ,  to  de- 
cide whether  the  power  granted  to  the  cit\'  of  Mobile  to  regulate  the 
weight  and  price  of  bread  was  unconstitutional,  and  it  was  contended  that 
"it  would  interfere  with  the  right  of  the  citizen  to  pursue  his  lawful 
trade  or  calling  in  the  mode  his  judgment  might  dictate  ;  "  but  the  court  ^jCuci '^^ 


f^ 


<f 


7-18  MUNN   V.   ILLINOIS.  [CHAP.  V. 

said,  "  there  is  no  motive  .  .  .  for  this  interference  on  the  part  of  the 
legislature  with  the  lawful  actions  of  individuals,  or  the  mode  in  which 
private  property  shall  be  enjoj-ed,  unless  such  calling  affects  the  public 
interest,  or  private  property  is  employed  in  a  manner  which  directly 
aliects  tlie  body  of  the  people.  Ui)on  this  principle,  in  tliis  State, 
tavern-keepers  are  licensed  ;  .  .  .  and  the  County  Court  is  required,  at 
least  once  a  j'ear,  to  settle  the  rates  of  innkeepers.  Upon  the  same 
principle  is  founded  the  control  which  the  legislature  has  always  exer- 
cised in  the  establishment  aud  regulation  of  mills,  ferries,  bridges,  turn- 
pike roads,  and  other  kindred  subjects."  Mobile  v.  Yuille,  3  Ala. 
N.  s.  140. 

From  the  same  source  comes  the  power  to  regulate  the  charges  of 
common  carriers,  which  was  done  in  England  as  long  ago  as  the  third 
year  of  the  reign  of  William  and  Mar}-,  and  continued  until  within  a 
comparativel}-  recent  period.  And  iu  the  first  statute  we  find  the  fol- 
lowing suggestive  preamble,  to  wit :  — 

"  And  whereas  divers  wagoners  and  other  cari'iers,  by  combination 
amongst  themselves,  have  raised  the  prices  of  carriage  of  goods  in  many 
places  to  excessive  rates,  to  the  great  injury  of  the  trade  :  Be  it,  there- 
fore, enacted,"  &c.  3  W.  &  M.  c.  12,  §  24;  3  Stat,  at  Large  (Great 
Britain),  481. 

Common  carriers  exercise  a  sort  of  public  oflfice,  and  have  duties  to 
perform  in  which  the  public  is  interested.  JS^ew  Jersey  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  382.  Their  business  is,  therefore,  "  affected 
with  a  public  interest,"  within  the  meaning  of  the  doctrine  which  Lord 
Hale  has  so  forcibly  stated. 

But  we  need  not  go  further.  Enough  has  already  been  said  to  show 
that,  when  private  property  is  devoted  to  a  public  use,  it  is  subject  to 
public  regulation.  It  remains  only  to  ascertain  whether  the  warehouses 
of  these  plaintiffs  in  eri'or,  and  the  business  which  is  carried  on  there, 
come  within  the  ojjeration  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  contained 
in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs  in  error. 
From  these  it  appears  that  "  the  great  producing  region  of  the  West 
and  North-west  sends  its  grain  by  water  and  rail  to  Chicago,  where  the 
greater  part  of  it  is  shipped  b}^  vessel  for  transportation  to  the  seaboard 
by  the  Great  Lakes,  and  some  of  it  is  forwarded  b}'  railway  to  the 
Eastern  ports.  .  .  .  Vessels,  to  some  extent,  are  loaded  in  the  Chicago 
harbor,  and  sailed  through  tlie  St.  Lawrence  directly  to  Europe.  .  .  . 
The  quantity'  [of  grain]  received  in  Chicago  has  made  it  the  greatest 
grain  market  in  the  world.  This  business  has  created  a  demand  for 
means  by  which  the  immense  quantit}'  of  grain  can  be  handled  or  stored, 
and  these  have  been  found  in  grain  warehouses,  which  are  commonly 
called  elevators,  because  the  grain  is  elevated  from  the  boat  or  car,  by 
machiner}'  operated  b}'  steam,  into  the  bins  prepared  for  its  reception, 
and  elevated  from  the  bins,  b}-  a  like  process,  into  the  vessel  or  car 
which  is  to  carry  it  on.  ...  In  this  way  the  largest  traflSc  between  the 


CHAP,  v.]  MUNN   V.   ILLINOIS.  749 

citizens  of  the  country  north  and  west  of  Chicago  and  the  citizens  of 
the  country  lying  on  the  Atlantic  coast  north  of  Washington  is  in  grain 
which  passes  through  the  elevators  of  Chicago.  In  this  way  the  trade 
in  grain  is  carried  on  by  the  inhabitants  of  seven  or  eight  of  the  great 
States  of  the  West  with  four  or  five  of  the  States  lying  on  the  sea-shore, 
and  forms  the  largest  part  of  interstate  commerce  in  these  States. 
The  grain  warehouses  or  elevators  in  Chicago  are  immense  structures, 
holding  from  300,000  to  1,000,000  bushels  at  one  time,  according  to 
size.  They  are  divided  into  bins  of  large  capacity  and  great  strength. 
.  .  .  They  are  located  with  the  river  harbor  on  one  side  and  the  rail- 
way tracks  on  the  other ;  and  the  grain  is  run  through  them  from  car  to 
vessel,  or  boat  to  car,  as  may  be  demanded  in  the  course  of  business.  It 
has  been  found  impossible  to  preserve  each  owner's  grain  separate,  and 
this  has  given  rise  to  a  system  of  inspection  and  grading,  by  which  the 
grain  of  diffei-ent  owners  is  mixed,  and  receipts  issued  for  the  number  of 
bushels  which  are  negotiable,and  redeemable  in  like  kind,  upon  demand. 
This  mode  of  conducting  the  business  was  inaugurated  more  than 
twenty  years  ago,  and  has  grown  to  immense  proportions.  The  rail- 
ways have  found  it  impracticable  to  own  such  elevators,  and  public 
policy  forbids  the  transaction  of  such  business  by  the  carrier  ;  the  owner- 
ship has,  therefore,  been  by  private  individuals,  who  have  embarked 
their  capital  and  devoted  their  industry  to  such  business  as  a  private 
pursuit." 

In  this  connection  it  must  also  be  borne  in  mind  that,  although  in 
1874  there  were  in  Chicago  fourteen  warehouses  adapted  to  this  par- 
ticular business,  and  owned  by  about  thirty  persons,  nine  business 
firms  controlled  them,  and  that  the  prices  charged  and  received  for 
storage  were  such  "  as  have  been  from  year  to  year  agreed  upon  and 
estabhshed  by  the  different  elevators  or  warehouses  in  the  city  of 
Chicago,  and  which  rates  have  been  annually  published  in  one  or  more 
newspapers  printed  in  said  cit}',  in  the  month  of  January  in  each  year, 
as  the  established  rates  for  the  year  then  next  ensuing  such  publication." 
Til u sit  is  apparent  that  all  the  elevating  facilities  through  which  thes e 
vast  productions  ^'of  seven  or  eight  great  States  of  the  West"  must 
pass  on  the  way  "  to  four  or  five  of  the  States  on  the  sea-shore"  may 
be  a  '^virtual"  monopoly. 

Under  such  circumstances  it  is  difficult  to  see  why,  if  the  common 
carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or  the  wharfin- 
ge i-j  or  the  baker,  or  the  cartman,  or  the  hackney-coachman,  pursues  a 
public  employment  and  exercises  "  a  sort  of  public  office,"  these  plain- 
tiffs in  error  do  not.  They  stand,  to  use  again  the  language  of  their 
counsel,  in  the  very  ^'  gateway  of  commerce,"  and  take  toll  from  all 
who  pass.  Their  business  most  certainly  ''tends  to  a  common  charge, 
and  is  become  a  thing  of  public  interest  and  use."  Every  bushel  of 
grain  for  its  passage  "  pays  a  toll,  which  is  a  common  charge,"  and, 
therefore,  according  to  Lord  Hale,  every  such  warehouseman  "ought 
to  be  under  public  regulation,  viz.,  that  he  .  .  .  take  but  reasonable 


750  MUNN   V.    ILLINOIS.  [CIIAP.  V. 

toll."  Certainly,  if  any  business  can  be  clothed  '■'■  with  a  ])ablic  interest 
and  cease  to  he  juris  privKtl  only,"  tliis  has  been.  It  may  not  be  made 
so  by  the  oi:)eration  of  the  Constitution  of  Illinois  or  this  statute,  but  it 
is  by  the  facts. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some  reason, 
the  people  of  Illinois,  when  the\'  revised  their  Constitution  in  1870,  saw 
fit  to  make  it  the  dut^'  of  the  General  Assembl}-  to  pass  laws  "  for  the 
protection  of  producers,  shippers,  and  receivers  of  grain  and  produce," 
art.  13,  sect.  7  ;  and  b}'  sect.  5  of  the  same  article,  to  require  all  rail- 
road companies  receiving  and  transporting  grain  in  bulk  or  otherwise  to 
deliver  the  same  at  an}'  elevator  to  which  it  might  be  consigned,  that 
could  be  reached  b}'  any  track  that  was  or  could  be  used  by  such  corn- 
pan}',  and  that  all  railroad  companies  should  permit  connections  to  be 
made  with  their  tracks,  so  that  an}^  public  warehouse,  &c.,  might  be 
reached  by  the  cars  on  their  railroads.  This  indicates  very  clearly  that 
during  the  twenty  years  in  w'hich  this  peculiar  business  had  been  assum- 
ing its  present  "immense  proportions."  something  had  occurred  which 
led  the  whole  body  of  the  people  to  suppose  that  remedies  such  as  are 
usually  employed  to  prevent  abuses  by  virtual  monopolies  might  not  be 
inapproi.iriate  here.  For  our  purposes  we  must  assume  that,  if  a  state 
of  facts  could  exist  that  would  justify  such  legislation,  it  actually  did 
exist  when  the  statute  now  under  consideration  was  passed.  For  us 
the  question  is  one  of  power,  not  of  expediency.  If  no  state  of  circum- 
stances could  exist  to  justif}'  such  a  statute,  then  we  ma}-  declare  this 
one  void,  because  in  excess  of  the  legislative  power  of  the  State.  But 
if  it  could,  we  must  presume  it  did.  Of  the  propriety  of  legislative  inter- 
ference within  the  scope  of  legislative  power,  the  legislature  is  the  ex- 
clusive judge. 

Neither  is  it  a  matter  of  any  moment  that  no  precedent  can  be  found 
for  a  statute  precisely  like  this.  It  is  conceded  that  the  business  is  one 
of  recent  origin,  that  its  growth  has  been  rapid,  and  that  it  is  already 
of  great  importance.  And  it  must  also  be  conceded  that  it  is  a  busi- 
ness in  which  the  whole  public  has  a  direct  and  i^ositive  interest.  It 
])rcsents,  therefore,  a  case  for  the  application  of  a  long-known  and  well- 
established  principle  in  social  science,  and  this  statute  simply  extends 
the  law  so  as  to  meet  this  new  development  of  commercial  progress. 
There  is  no  attempt  to  compel  these  owners  to  grant  the  public  an 
interest  in  their  property,  but  to  declare  their  obligations,  if  they  use  it 
in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had  built  their 
warehouses  and  established  their  business  before  the  regulations  com- 
plained of  were  adopted.  What  they  did  was  from  the  beginning  sub- 
ject  to  the  power  of  the  body  politic  to  require  them  to  conform  to  such 
regulations  as  might  be  established  by  the  proper  authorities  for  the 
common  good..  They  entered  upon  their  business  and  provided  them- 
selves with  the  means  to  carry  it  on  subject  to  this  condition.  If  they 
did  not  wish  to  submit  themselves  to  such  interference,  they  should  not 


CHAP,  v.]  MUNN   V.   ILLINOIS.  751 

have  clothed  the  public  with  an  interest  in  their  concerns.  The  same 
piin 0 i pic  applies  to  them  that  does  to  the  ))roprietor  of  a  hackney-car- 
nage, and  as  to  him  it  has  never  been  sii|)|)Osed  that  he  was  exempt 
fiprn  regulating  statutes  or  ordinances  because  he  had  purchased  his 
horses  and  carriage  and  established  his  business  before  the  statute  or 
the  ord i nance  was  adopted . 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a 
reasonable  compensation  for  its  use,  even  though  it  be  clothed  with  a 
public  interest,  and  that  what  is  reasonable  is  a  judicial  and  not  a  legis- 
lative question. 

As  has  alread}'  been  sliown,  the  practice  has  been  otherwise.     In 
countries  where  the  common  law  prevails,  it  has  been  customary  from 
time  immemorial  for  the  legislature  to  declare  what  shall  be  a  reason-   qC  C  ^^t/^  ^ 
able  compensation  under  such  circumstances,  or,  perhaps  more  properl}'-    ^ ^^^  «.  Aj 
speaking,  to  fix  a  maximum  beyond  which  any  charge  made  would  be  .  j^ 

unreasonable.      TTrfi^pnl^tedlv,  in   mei'e  private  contracts,  relating  to  ^  ouxt^vn 
matters  in  which  tlie  public  ha^nojuiterest,  wiiat  is  reasonable  must  be  ^v^/m."-^  ^'^ 
ascertained  judicially.    ~Birrttii?"Ts  because  the  legislature  has  no  con-    i*A^ -M O/a-^ 
trol  over  such  a  contract.  (  So,  too,  in  matters  which  do  affect  the  puhUc t ^^JjJlj^ 
interest,  and  as  to  which  legislative  control  may  be  exercised,  if  there ^ 
are  no  statutory  regulations  upon  the  subject,  the  courts  must  determinej 
what  is  reasonable. '    The  controlling  fact  is  the  power  to  regulate  at  all.  - 
If  that  exists,  the  right  to  establish  the  maximum  of  charge,  as  one  of' 
the  means  of  regulation,  is  implied.      In  fact,  the  common-law  rule, 
which  requires  the  charge  to  be  reasonable,  is  itself  a  regulation  as  to 
price.     Without  it  the  owner  could  make  his  rates  at  wall,  and  compel 
the  public  to  yield  to  his  terms,  or  forego  the  use. 

But  a  mere  common-law  regulation  of  trade  or  business  may  be 
changed  by  statute.  <.A  person  has  no  property,  no  vested  interest,  in 
any  rule  of  the  common  law.'^  That  is  onlv  one  of  the  forms  of  munici- 
pal law,  and  is  no  more  sacred  than  any  other.  Rights  of  property 
which  have  been  created  by  the  common  law  cannot  be  taken  away 
without  due  process  ;  but  the  law  itself,  as  a  rule  of  conduct,  may  be 
changed  at  the  will,  or  even  at  the  whim,  of  the  legislature,  unless  pre- 
vented by  constitutional  limitations.  Indeed,  the  great  office  of  statutes 
is  to  remed}"  defects  in  tlie  common  law  as  they  are  developed,  and  to 
adapt  it  to  the  changes  of  time  and  circumstances.  To  limit  the  rate  of 
charge  for  services  rendered  in  a  public  employment,  or  for  tlie  use  of 
property  in  w^iich  the  public  has  an  interest,  is  only  changing  a  regula- 
tion which  existed  before.  It  establishes  no  new  principle  in  the  law, 
but  onl}'  gives  a  new  effect  to  an  old  one. 

\Ye  know  that  this  is  a  power  which  ma}-  be  abused  ;  but  that  is  no 
argument  against  its  existence.  For  protection  against  abuses  by  legis- 
latures the  people  must  resort  to  the  polls,  not  to  the  courts. 

After  what  has  already'  been  said,  it  is  unnecessary  to  refer  at  length 
to  the  effect  of  the  other  provision  of  the  Fourteenth  Amendment  which 
is  relied  upon,  viz.,  that  no  State  shall  "  den}-  to  any  person  within  its 


752  MUNN   V.   ILLINOIS.  [CIIAP.  V. 

jurisdiction  the  equal  protection  of  the  laws."  Certainly,  it  cannot  Tie 
claimed  that  this  prevents  tlie  State  from  regulating  the  fares  of  hack- 
men  or  the  charges  of  dra^ymen  in  Chicago,  unless  it  does  the  same  tiling 
in  ever)'  other  place  within  its  jurisdiction.  But,  as  has  been  seen,  the 
power  to  regulate  the  business  of  warehouses  depends  upon  the  same 
principle  as  the  power  to  regulate  hackmen  and  draymen,  and  what  can- 
not be  done  in  the  one  case  in  this  particular  cannot  be  done  in  the 
other. 

We  come  now  to  consider  the  effect  upon  this  statute  of  the  power  of 
Congress  to  regulate  commerce. 

It  was  ver3'  properl}-  said  in  the  case  of  the  State  Tax  on  Raihoay 
Gross  Eeceipts,  15  Wall.  293,  that  "  it  is  not  everything  tliat  affects 
commerce  that  amounts  to  a  regulation  of  it,  within  the  meaning  of  the 
Constitution."  The  warehouses  of  these  plaintiffs  in  error  are  situated 
and  their  business  carried  on  exclusively  within  the  limits  of  the  Stole 
of  Illinois.  They  are  used  as  instruments  by  those  engaged  in  State  as 
well  as  those  engaged  in  interstate  commerce,  but  they  are  no  more 
necessarilv  a  part  of  commerce  itself  than  the  drav  or  the  cart  bv  which, 
but  for  them,  grain  would  be  transferred  from  one  railroad  station  to 
another.  Incidentally  they  may  become  connected  with  interstate  com- 
merce, but  not  necessaril}'  so.  Tlieir  regulation  is  a  thing  of  domestic 
concern,  and,  certainly,  until  Congress  acts  in  reference  to  their  inter- 
state relations,  the  State  may  exercise  all  the  powers  of  government 
over  them,  even  though  in  so  doing  it  may  indirectly  operate  upon  com- 
merce outside  its  immediate  jurisdiction.  We  do  not  sa}'  that  a  case 
may  not  arise  in  wiilch  it  will  be  found  that  a  State,  under  the  form  of 
regulating  its  own  affairs,  has  encroached  upon  the  exclusive  domain  of 
Congress,  in  respect  to  interstate  commerce,  but  we  do  sa}'  that,  upon 
the  facts  as  thej'  are  represented  to  us  in  this  record,  that  has  not  been 
done. 

The  remaining  objection,  to  wit,  that  the  statute  in  its  present  form 
is  repugnant  to  sect.  9,  art.  1,  of  the  Constitution  of  the  United  States, 
because  it  gives  preference  to  the  ports  of  one  State  over  those  of 
another,  may  be  disposed  of  by  the  single  remark  that  this  provision 
operates  onl}'  as  a  limitation  of  the  powers  of  Congress,  and  in  no  re- 
spect affects  the  States  in  the  regulation  of  their  domestic  affairs. 

We  conclude,  therefore,  that  the  statute  in  question  is  not  repugnant 
to  the  Constitution  of  the  United  States,  and  that  there  is  no  error  in 
the  judgment.  In  passing  upon  this  case  we  have  not  been  unmindful 
of  the  vast  importance  of  the  questions  involved.  This  and  cases  of  a 
ki ndred  character  were  argued  before  us  more  than  a  year  ago  by  most 
eminent  counsel,  and  in  a  manner  worthy  of  their  well-earned  reiiuta- 
tions.  We  have  kept  the  cases  long  under  advisement,  in  order  that 
their  decision  might  be  the  result  of  our  mature  deliberations. 

Judgment  affirmed. 

[Field,  J.,  gave  a  dissenting  opinion,  in  which  Strong,  J.,  concurred.] 


CHAP,  v.]  RAILROAD   CO.   V.   HUSEN.  753 


RAILROAD    COMPANY   v.   HUSEN. 
Supreme  Court  of  the  United  States.     1877. 

[95  U.  S.  465.]  1 

Error  to  the  Supreme  Court  of  the  State  of  Missouri.     3fr.  James 
Carr,  for  the  plaintiff  in  error.     31):  M.  A.  Low,  contra. 
Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

Five  assignments  of  error  appear  in  this  record  ;  but  the}'  raise  onh^ 
a  single  question.  It  is,  whether  the  statute  of  Missouri,  upon  which 
the  action  in  the  State  court  was  founded,  is  in  conflict  with  the  clause 
of  the  Constitution  of  the  United  States  that  ordains  "  Congress  shall 
have  power  to  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes."  The  statute,  approved  Jan. 
23,  1872,  b}-  its  first  section,  enacted  as  follows  :  "  No  Texas,  Mexican, 
or  Indian  cattle  shall  be  driven  or  otherwise  conveyed  into,  or  remain, 
in  any  county  in  this  State,  between  the  first  day  of  March  and  the  first 
day  of  November  in  each  year,  by  any  person  or  persons  whatsoever." 
A  later  section  is  in  these  words  :  "  If  any  person  or  persons  shall  bring 
into  this  State  any  Texas,  Mexican,  or  Indian  cattle,  in  violation  of  the 
first  section  of  this  Act,  he  or  they  shall  be  liable,  in  all  cases,  for  all 
damages  sustained  on  account  of  disease  communicated  by  said  cattle." 
Other  sections  make  such  bringing  of  cattle  into  the  State  a  criminal 
offence,  and  provide  penalties  for  it.  It  was,  however,  upon  the  provi- 
sions we  have  quoted  that  this  action  was  brought  against  the  raili-oad 
company  that  had  conveyed  the  cattle  into  the  county.  It  is  noticeable 
that  the  statute  interijoses  a  direct  prohibition  against  the  introduction 
into  the  State  of  all  Texas,  Mexican,  or  Indian  cattle  during  eight 
months  of  each  year,  without  any  distinction  between  such  as  may  be 
diseased  and  such  as  are  not.  It  is  true  a  proviso  to  the  first  section 
enacts  that  "  when  such  cattle  shall  come  across  the  line  of  the  State, 
loaded  upon  a  railroad  car  or  steamboat,  and  shall  pass  through  the 
State  without  being  unloaded,  such  shall  not  be  construed  as  prohibited 
by  the  Act ;  but  the  railroad  company  or  owners  of  a  steamboat  perform- 
ing such  transportation  shall  be  responsible  for  damages  which  may 
result  from  the  disease  called  the  Spanish  or  Texas  fever,  should  the 
same  occur  along  the  line  of  transportation  ;  and  the  existence  of  such 
disease  along  the  line  of  such  route  shall  he  2yrima  facie  evidence  tliat 
such  disease  has  been  communicated  by  such  transportation."  Tliis 
proviso  imposes  burdens  and  liabilities  for  transportation  through  the 
State,  though  the  cattle  be  not  unloaded,  while  the  body  of  the  section 
absolutely  prohibits  the  introduction  of  any  such  cattle  into  the  State, 
with  the  single  exception  mentioned. 

It  seems  hardly  necessary  to  argue  at  length,  that,  unless  the  statute 

1  The  statement  of  facts  is  omitted.  —  Ed. 
VOL.  I.  — 48 


754  RAILROAD   CO.    V.   HUSEN.  [CIIAP.  V. 

can  be  justified  as  a  legitimate  exercise  of  the  police  power  of  the  State, 
it  is  a  usurpation  of  tlie  power  vested  cxclusivelv  in  Congress.  It  is  a 
plain  reuLilation  of  interstate  commerce,  tw-egulation  extending  to  pro- 
hibition. Whatever  may  be  the  power  of  a  State  over  commerce  that  is 
completely  internal,  it  can  no  more  prohibit  or  regulate  that  which  is 
interstate  than  it  can  that  which  is  with  foreign  nations.  Power  over 
one  is  given  by  the  Constitution  of  the  United  States  to  Congress  in 
the  same  words  in  which  it  is  given  over  the  other,  and_in_both  cases  it 
is  necessarily  exclusive.  Tliat  the  transportation  of  property  from  one 
Sintp.  to  niioMipr  is  a  brnneh  of  interstate  commerce  is  undeniable,  and 
no  attempt  has  been  made  in  this  case  to  deny  it. 

The  Missouri  statute  is  a  plain  interference  with  such  transportatio n , 
an  attempted  exercise  over  it  of  the  highest  yjossible  power,  —  that  of 
destruction.  It  meets  at  the  borders  of  the  State  a  large  and  common 
subject  of  commerce,  and  prohibits  its  crossing  the  State  line  during 
two  thirds  of  each  year,  with  a  proviso,  however,  that  such  cattle  may 
come  across  the  line  loaded  upon  a  railroad  car  or  steamboat,  and  pass 
through  the  State  without  being  unloaded.  But  even  the  right  of  steam- 
boat owners  and  railroad  companies  to  transport  such  property  through 
the  State  is  loaded  b}-  the  law  with  onerous  liabilities,  because  of  their 
agency  in  the  transportation.  The  olnect  and  effect  of  the  statute  are, 
therefore,  to  obstruct  interstate  commerce,  and  to  discriminate  between 
the  property  of  citizens  of  one  State  and  that  of  citizens  of  other  States. 
This  court  has  heretofore  said  that  interstate  transportation  of  passen- 
gers is  beyond  the  reach  of  a  State  legislature.  And  if,  as  we  have  held, 
State  taxation  of  persons  passing  from  one  State  to  another,  or  a  State 
tax  upon  interstate  transportation  of-  passengers,  is  pi'ohibited  by  the 
Constitution  because  a  burden  upon  it,  a  fortiori^  if  possible,  is  a  State 
tax  upon  the  carriage  of  merchandise  from  State  to  State.  Transpor- 
tation is  essential  to  commerce,  or  rather  it  is  commerce  itself;  and 
every  obstacle  to  it,  or  burden  laid  upon  it  by  legislative  authority,  is 
regulation.  Ca&e  of  the  State  Freight  Tax,  15  Wall.  232;  Ward\. 
Maryland,  12  Id.  418  ;  Wdton  v.  The  State  of  Jfissouri,  91  U.  S. 
275  ;  Henderson  et  al.  v.  Mayor  of  the  City  of  Neto  York  et  al,  92  Id. 
259  ;  Chy  Lung  v.  Freeman  et  al.,  Id.  275.  The  two  latter  of  these 
cases  refer  to  obstructions  against  the  admission  of  persons  into  a  State, 
but  the  principles  asserted  are  equally  applicable  to  all  subjects  of 
commerce. 

We  are  thus  brought  to  the  question  whether  the  Missouri  statute  is 
a  lawful  exercise  of  the  police  power  of  the  State.  We  admit  that  the 
deposit  in  Congress  of  the  power  to  regulate  foreign  commerce  and 
commerce  among  the  States  was  not  a  surrender  of  that  which  may 
properly  be  denominated  police  power.  What  that  power  is,  it  is  diffi- 
cult to  define  with  sharp  precision.  It  is  generally  said  to  extend  to 
making  regulations  promotive  of  domestic  order,  morals,  health,  and 
safety.  As  was  said  in  Thorpe  \.  The  Rutlayid  &  Burlington  Railroad 
Co.,  27  Vt.   149,  "  it  extends  to  the  protection  of  the   lives,   limbs, 


CHAP,  v.]                              RAILROAD    CO.    V.    HUSEN.                                          7o5  .^      ^, 

health,  comfort,  and  quiet  of  all  persons,  and  the  protection  of  all  prop-  ^^  CXU/^^vi' 

erty  within  the  State.     According  to  the  maxim,  Sic  lUere  tuo  ut  alienuni  hi^^xA,.g/i  <ri 

non  IcGclaSy  which  being  of  universal  application,  it  must,  of  course,  be  '                   *■ 

witliin  the  range  of  legislative  action  to  define  the  mode  and  manner  in  Cru.^.'TX^/a 

which  every  one  ma}'  so  use  his  own  as  not  to  injure  others."  ...  It  ~*~,  j\£o{mX'^ 

ma}'  also  be  admitted  that  the  police  jiower  of  a  State  justifies  the  (^ 

adoption  of  precautionary  measures  against  social  evils.     Under  it  a  'C-^inAVUAA/ 

State  may  legislate  to  prevent  the  spread  of  crime,  or  pauperism,  or  (j^  /o^<*^/ 

disturbance  of  the  peace.     It  ma}'  exclude  from  its  limits  convicts,  y4 

paupers,   idiots,  and  lunatics,  and  persons  likely  to  become  a  public  , 

charge,  as  well  as  persons  afflicted  by  contagious  or  infectious  diseases  ;  'p^^iyV\M/(. 

a  right  founded,  as  intimated  in  the  Passenger  Cases,  7  How.  283,  by  ^-^^jLI  X^ 

Mr.  Justice  Greer,  in  the  sacred  law  of  self  defence.       Vide  3  Sawyer,  '  n"^^  u 

283.     The  same  principle,  it  may  also  be  conceded,  would  justify  the  '^*'^  '■'^_^ 

exclusion  of  property  dangerous  to  the  property  of  citizens  of  the  State  ;  ^d-^vt^    ^ 

for  example,  animals  having  contagious  or  infectious  diseases.    AH  these  /^er/k,  /\Ct 

exertions  of  power  are  in  immediate  connection  with  tlie  protection  of  a  i        \ 

])ersons  and  property  against  noxious  acts  of  other  persons,  or  such  a  ^^V<y^^^^^  J* 

use  of  property  as  is  injurious  to  the  property  of  others.    They  are  self-  /.(vo^  x/u 

defensive.  '   c^  a^tilx 

But  whatever  may  be  the  nature  and  reach  of  the  police  power  of  a  ^  c\a^^'^^ 

State,    it  cannot  be  exercised  oyer  a  subject  confided  exclusively  to  /7>  /  "fe!^ 

Congress  by  the  Federal  Constitution.     It  cannot  invade  the  domain  of  ^    .                 / 

the  national  goyernmcnt.     It  was  said  in  Henderson  et  al.  v.  Mayor  of  (h^^T^A/^'-  ^ 

the  City  of  Neio  York  et  al.,  supra,  to  "be  clear,  from  the  nature  of  ' yf^Jx^  -^ 

our  complex  form  of  government,  that  whenever  tlie  statute  of  a  State  '  ^        A/U'V 

invades  the  domain  of  legislation  which  belongs  exclusively  to  the  Con-  Q 

gress  of  the  United  States,  it  is  void,  no  matter  under  what  class  of  uo^  ttcc^ 

powers  it  may  fall,  or  how  closely  allied  it  may  be  to  powers  conceded  ■yiytcit^'^ 

to  belong  to  the  States."      Substantially  the  same  thing  was  said  by  ^       Mxi/^^y 

Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9  Wheat.  1.     Xeither  the  T. 

unlimited  powers  of  a  State  to  tax,  nor  any  of  its  large  police  powers,  ^/^^    ^-^ 

can  be  exercised  to  such  an  extent  as  to  work  a  practical  assumption  of  /ic<d.o\c, 

the   powers   properly  conferred  upon   Congress  by   the    Constitution,  i            <J 
Many  acts  of  a  State  may,  indeed,  affect  commerce,  without  amounting 

to  a  regulation  of  it,  in  the  constitutional  sense  of  tlie  term.      And  Vj  n»t/UA^ 

it  is  sometimes  difficult  to  define  the  distinction  between  tliat  which  ^j^^i-A/ 

merely  affects  or  influences  and  that  Avhich  regulates  or  furnishes  a  fU^p^ 

rule    of    conduct.      There  is   no  such  difficulty   in   tlie  present  case.  -^ZtjC',^ 

While  we  unhesitatingly  admit  that  a  State  may  pass  sanitary  laws,  , 

and  laws  for  the  protection  of  life,   liberty,  health,  or  property  within  i^i-*^'-'^^^ 

its  borders  ;  while  it  may  prevent  persons  and  animals  suflTcring  under  ^(2-^.4*^ 

enntnginns  or  infectious  diseases,  or  convicts,  &c.,  from  entering  the  h^  '^tvi/t^t^ 

State  ;  while  for  the  purpose  of  self-protection  it  may  establish  guar-  -    ,  , 

antine,    and    reasonable    inspection   laws,   it   may   not  interfere  with  ^  oyi^    v r* 

transportation  into  or  through  the   State,  beyond  what  is   absolutely  7.     (Su^AX 

necessary  for  its  self-protection.     It  may  not,  under  cover  of  exert-  Y            ^ 


Os^A  w^  I^CU  c^rwit  ^  :^.uJi^^^ 


LtrvOUC         ^^^  RAILROAD   CO.    V.    HUSEN.  [CILVr.  V. 

AXtvvvv^.*jL    ii^g  its  police  powers,  substantuiHv  i)rohibit  or  burden  either  foreign 
-^    '  or  interstate  coiiimcrce.     Upon  this  subject  the  cases  in  92  U.  S.   to 

which  we  have  referred  are  ver^'  instructive.      In  Henderson  v.    The 
'^JiXjJjD^    Mayor,  etc.,  the  statute  of  New  Yorlv  was  defended  as  a  police  regu- 
lation to  protect  the  State  against  the  influx  of  foreign  paupers ;  but 
'~-      it  was  held  to  be  unconstitutional,  because  its  practical  result  was  to 
-1/h  impose  a  burden  upon  all  passengers  from  foreign  countries.     And  it 

■  tjD^  "tu      """^s  laid  down  that,  '^  in  whatever  language  a  statute  may  be  framed, 
^  its  purpose  must  be  determined  by  its  natural  and  reasonable  effect." 

'    '*~^  The  reach  of  the  statute  was  far  be^'ond  its  professed  object,  and  far 

^^xA.  QjUcv*.  i"^^  t^^  realm  which  is  within  the  exclusive  jurisdiction  of  Congress. 
1»    i^        ^o  in  the  case  of  Chy  Lung  v.  Freeman,  where  the  pretence  was  the 
gf  exclusion  of  lewd  women  ;  but  as  the  statute  was  more  far-reaching,  and 

•    t\  '  ^^'    affected  other  immigrants,  not  of  any  class  which  the  State  could  law- 
((jL4,~tlM.       ^^"^^  exclude,  we  held  it  unconstitutional.)  Neither  of  these  cases  denied 
.^_    r  the  right  of  a  State  to  protect  herself  against  paupers,  convicted  crimi- 

■*^  "  nals,  or  lewd  women,  by  necessarj-  and  proper  laws,  in  the  absence  of 

yjj^  legislation  by  Congress,  but  it  was  ruled  that  the  right  could  onl}-  arise 

from  vital  necessity,  and  that  it  could  not  be  carried  beyond  the  scope 
(^  of  that  necessity.     These  cases,  it  is  true,  speak  onl}-  of  laws  affecting 

y^a^vL       the  entrance  of  persons  into  a  State  ;  but  the  constitutional  doctrines 
•^  they    maintain  are  equally  applicable  to  interstate  transportation  of 

^    property.     The}-  deny  validity  to  any  State  legislation  professing  to  be 
^ix.  A^^^-^'an  exercise  of  police  power  for  protection  against  evils  from  abroad, 
.  -^i^      which  is  beyond  the  necessity  for  its  exercise  wherever  it  interferes  with 
the  rights  and  powers  of  the  Federal  government. 

I  /     '        a 1 S 

.-<XM   Tiu_.a-       Tried  by  this  rule,  the  statute  of  Missouri  is  a  plain  intrusion  upon 

4*--/)      the  exclusive  domain  of  Congress.     It  is  not  a  quarantine  law.     It  is 

^^^^^^    not  an  inspection  law.     It  says  to  all  natural  persons  and  to  all  trans- 

JLt^'^'XJXA.'^  portation  companies,   "You  shall  not  bring  into  the  State  any  Texas 

/>JLoXL*t-^  ca-ttle  or  any  Mexican  cattle  or  Indian  cattle,  between  March  1   and 

^  Dec.  1  in  any  year,  no  matter  whether  they  are  free  from  disease  or  not, 

bt<«.  /^/frA^rio  matter  whether  they  may  do  an  injury  to  the  inhabitants  of  the  State 

'or  not;  and  if  vou  do  bring  them  in,  even  for  the  purpose  of  carrying 

them  through  the  State  without  unloading  them,  you  shall  be  subject  to 

extraordinary  liabilities."     Such  a  statute,  we  do  not  doubt,  it  is  beyond 

'\xr\i/>^      the  power  of  the  State  to  enact.     To  hold  otherwise  would  be  to  ignore 

\   I  one  of  the  leading  objects  which  the  Constitution  of  the  United  States 

was  designed  to  secure. 

/tiiA-A.  /Vfl--       In  coming  to  such  a  conclusion,  we  have  not  overlooked  the  decisions 

of  ver}'  respectable  courts  in  Illinois,  where  statutes  similar  to  the  one 

L.vtA^.'^-'-          we  have  before  us  have  been  sustained.      Yeasel  v.  Alexander,  58  111. 

f^^j^^jt^      254.     Regarding  the  statutes  as  mere  police  regulations,  intended  to 

protect  domestic  cattle  against  infectious  disease,   those  courts   have 

x^^^^-^""^"*-      refused  to  inquire  whether  the  prohibition  did  not  extend  bej'ond  the 

^  danger  to  be  apprehended,  and  whether,  therefore,  the  statutes  were  not 

""*"  something  more  than  exertions  of  police  power.     That  inquirj',  they 


^^  ^  '}Vm^'^^-vvvi^'*^  /'-i-^. 


CHAP,  v.]  BEER   CO.    V.    MASS.  757 

have  said,  was  for  the  legislature  and  not  for  the  courts.  With  this  we 
cannot  concur.  The  police  power  of  a  State  cannot  obstruct  foreign 
commerce  or  interstate  commerce  beyond  the  necessity  for  its  exercise  ; 
and  under  color  of  it  objects  not  within  its  scope  cannot  be  secured  at 
the  expense  of  the  piotection  afforded  by  the  Federal  Constitution. 
And  as  its  range  sometimes  comes  very  near  to  the  held  committed  b}' 
the  Constitution  to  Congress,  it  is  the  duty  of  the  courts  to  guard  vigi- 
lantly against  any  needless  intrusion. 

Jud'jmeyit  reversed^  and  the  record  remanded  with  instructions  to 

reverse  the  judgment  of  the  Circuit  Court  of  Grundy  County,  and 

to  direct  that  court  to  aicard  a  new  trial.''-  Vy^        C     -^t 

l^Beer  Co.  v.  Mass.,  97  U.  S.  25,  32  (1878),  on  error  to  the  Supe-~^^  ^'^■'^  ' 
rior  Court  of  JVIassachusetts,  the  plaintiff  in  error,  having  been  incor-  _(tv-i\i>*-<«J 
porated  in  that  State,  in  1828,  for  the  ])urpose  of  manufacturing  malt  ,^^  tAAxrW' 
liquors,  denied  the  validity  of  a  prohibitory  liquor  law  of  1869,  on  the    ^  j! 

ground  that  it  impaired  the  obligation  of  the  contract  of  their  charter,  p*-^""^^  ^^ 
The  Supreme  Court  of  the  United  States  (Bradley,  J.),  after  holding  ry^y^a^u>.*^<^ 
that  the  Legislature  of  Massachusetts  had  reserved  to  itself  power  "  to  .jj^j.,^,^^^  ^^^^^ 
pass  any  law  it  saw  fit,"  continued  :   "But  there  is  another  question  in  * 

the  case,  which,  as  it  seems  to  us,  is  equall}'  decisive.  CAA-^vvxaj^  ' 

' '  The  plaintiff  in  error  was  incorporated  ^  for  the  purpose  of  manu-    *j..gji^(JLd^ 

facturing  malt  liquors  in  all  their  varieties,'  it  is  true  ;  and  the  right  to  f~. 

manufacture,  undoubtedly,  as  the  plaintiff's  counsel  contends,  included   A.|-,yv<HUA^ 

the   incidental   right   to   dispose   of    the   liquors    manufactured.     But    Qpuo^r  f^" 

although  this  right  or  capacity  was  thus  granted  in  the  most  unqualified  ' 
*        J ss 1 w      ^Aecwvi. 

form,  it  cannot  be  construed  as  conferring  any  greater  or  more  sacred  '  *      <r 

fight  than  any  citizen  had  to  manufacture  malt  liquor  ;  nor  as  exempt-  Xa*^^     '^ 

ing  the  corporation  from  any  control  therein  to  wliich  a  citizen  would  ,       a *4ua 

be  subject,  if  the  interests  of  the  community  should  require  it.     If  the  0^ 

public  safety  or  the  public  morals  require  the  discontinuance  of  an}-  -ti»^c^A.     aAt-i 

1  In  Kimmish  v.  Ball,  129  U.  S.  217,  222  (1889),  the  court  (Field,  J.)  said:  "The  '  .j.  '  ^fj^^^ 

case  is,  therefore,  reduced  to  this,  whether  the  State  may  uot  provide  that  whoever  ^-'^'^^ 
permits  diseased  cattle  in  his  possessiou  to  run  at  large  within  its  limits  shall  bo  liable     ^^      ^         x_ 
for  any  damages  caused  by  the  spread  of  the  disease  occasioned  thereby  ;  and  u]K)n  that     *^ 
%ve  do  not  entertain  the  slightest  doubt.     Our  answer,  therefore,  to  the  first  question     ^J    ^  jjj^ 
upon  wliich  the  judge  below  differed  is  in  the  negative,  that  the  section  in  question  is        ^ 
uot  unconstitutional  by  reason  of  any  conflict  with  the  commercial  clause  of  the  Con-       cXvfllK^fcUV. 
stitutioD. 

"As  to  the  second  question,  our  answer  is  also  in  the  negative.  There  is  no  denial  of  l*^  tJ^X  <xJU 
any  rights  and  privileges  to  citizens  of  other  States  which  are  accorded  to  citizens  of  .  ^'' 

Icjwa.     No  one  can  allow  diseased  cattle  to  run  at  large  in  Iowa  without  being  held  ,^XV'V\X>**' 
responsible  for  the  damages  caused  by  the  spread  of  disease  thereby ;  and  the  clause of_ ^^^  jLa,  Hl 

the  Constitution  declaring  that  the  citizens  of  each  State  shall  be  entitled  to  all  privi-  \_  <y'^ 

leges  and  immunities  of  citizens  in  the  several  States  does  not  give  non-resident  citizens  aJ^  A'i^O^ 
of  Iowa  any  greater  ]^rivileges  and  immunities  in  tjiat  State  than  her  own  citizens  there  (j 

enjoy.  So  far  as  lialiilitv  is  concerned  for  the  act  mentioned,  citizens  of  other  States  '|x4vc-<A.  •-W 
and  citizens  of  Iowa  stand  upon  the  same  footing.     Paul  v.    Vinjinki,  8  Wall.  168."     (J 

Compare  Uarriyan  v.  Conn.  River  Lumber  Co.,  129  Mass.  580. — Ed.  ^^itlS!^   • 


.<^- 


^aXi>.        758  HEAD    MONEY   CASES.  [CHAP.  V. 

inaiuifacture  or  traffic,  the  hand  of  the  legislature  cannot  be  stayed  from 
])rovidini;  for  its  discontinuance,  by  any  incidental  inconvenience  which 
individuals  or  corporations  may  sulfer.  All  rights  are  held  subject  to 
the  police  power  of  the  State. 

'•^Ve  do  not  mean  to  sav  that  Droperty  actually  in  existence,  and  in 
which  the  right  of  the  owner  has  become  vested,  may  be  taken  for  the 
public  good  without  du(^  compensation.  But  we  infer  that  the  liquor  in 
this  case,  as  in  the  case  of!  Tkirtemeyer  v.  Iowa,  18  Wall.  129,  was  not 
in  existence  when  the  liquor  law  of  Massachusetts  was  passed.  Had 
the  plaintiff  in  error  relied  on  the  existence  of  the  property  prior  to  the 
law,  it  behooved  it  to  show  that  fact.  But  no  such  fact  is  shown,  and 
no  such  point  is  taken.  The  plaintiff  in  error  boldly  takes  the  ground 
that,  being  a  corporation,  it  has  a  right,  by  contract,  to  manufacture 
and  sell  beer  forever,  notwithstanding  and  in  si)ite  of  any  exigencies 
which  may  occur  in  the  morals  or  the  health  of  the  community,  requir- 
ing such  manufacture  to  cease.  We  do  not  so  understand  the  rights 
of  the  plaintiff.  The  legislature  had  no  power  to  confer  any  such 
rights. 

''Whatever  differences  of  opinion  may  exist  as  to  the  extent  and 
boundaries  of  the  police  power,  and  however  difficult  it  may  be  to  ren- 
der a  satisfactory  definition  of  it,  there  seems  to  be  no  doubt  that  it 
does  extend  to  the  protection  of  the  lives,  health,  and  property  of  the 
citizens,  and  to  the  preservation  of  good  order  and  the  public  morals. 
The  leoisl.itnre  cannot,  bv  any  contract,  divest  itself  of  the  power  to 
provide  for  these  obiects.  They  belong  emphatically  to  that  class  of 
objects  which  demand  the  application  of  the  maxim,  ASahis  poyniU  su- 
prema  lex ;  and  they  are  to  be  attained  and  provided  for  by  such  appro- 
priate means  as  the  legislative  discretion  may  devise.  That  discretion 
can  no  more  be  bargained  aw^ay  than  the  power  itself.  Boyd  v.  Ala- 
bama,  94  U.  S.  645. 

"  Since  we  have  already  held,  in  the  case  of  Bartemeyer  v.  loim, 
that  as  a  measure  of  police  regulation,  looking  to  the  preservation  of 
public  morals,  a  State  law  prohibiting  the  manufacture  and  sale  of 
intoxicating  liquors  is  not  repugnant  to  any  clause  of  the  Constitution 
of  the  United  States,  we  see  notliing  in  the  present  case  that  can  afford 
any  sufficient  ground  for  disturbing  the  decision  of  the  Supreme  Court 
of  Massachusetts."  .  .  .  Judgment  affirmed. 


± 


r  ^^  In  the  Head  Money  Cases,  112  U.  S.  580,  590  ('1884),  in  sustaining 
■^  ^^-^^"Ij  an  Act  of  Congress  of  1882.  imposing  '•  a  duty  of  fifty  cents  for  each 
>v^a /Lfi'va-      and  every  passenger  not  a  citizen  of  the  United  States  wMio  shall  come 

d       ,        by  steam  or  sail  vessel  from  a  foreign  port  to  any  port  within  the 

^'X'""^'^    United  States,"  Millek.  J.,  for  the  court,  saidj  "This  Act  of  Con- 

JuJtM  gress   is  similar   in  its   essential   features   to   many  statutes   enacted 

^  by  States  of  the  Union  for  the  protection  of  their  own  citizens,  and  for 

'  S"^  ^^"^     the  good  of  the  immigrants  who  land  at  seaports  within  their  borders. 

to^^  "  That  the  purpose  of  these  statutes  is  humane,  is  highly  beneficial 


CHAP,  v.]  HEAD   MONEY   CASES.  759  -^L^'*-^ 

to  the  poor  and  helpless  immigrant,  and  is  essential  to  the  protection  of  -f^/J^^^^  Jf. 
the  people  in  whose  _midst  they  are  deposited  by  the  steamships,  is  . 

beyond  dispute.  That  the  power  to  pass  such  laws  should  exist  in  U-^^T^^^^  '* 
some  legislatjye  body  in  this  country  is  equally  clear.  This  court  has  lyx^rj^J^'^ 
decided  distinctly  and  frequently,  and  always  after  a  full  hearing  from  // 

able  counsel,  that  it  does  not  belong  to  the  States.  That  decision  did  ^  '^  ^^y^ 
not  rest  in  any  case  on  the  ground  that  the  State  and  its  people  were  -^/v<^  .j-n' 
not  deeply  interested  in  the  existence  and  enforcement  of  such  laws,  _  > 

and  were  not  capable  of  enforcing  them  if  they  had  the  power  to  enact      '^  ^~^  Q 
them  ;  but  on  the  ground  that  the  Constitution,  in  tlie  division  of  powers    ^.■2^,Myua/t^ 
which  it  declares  between  the  States  and  the  general  goyernment,  has         .       _// 
conferred  this  power  on  the  latter  to  the  exclusion  of  the  former.     We     'y^^      / 
are  now  asked  to  decide  that  it  does  not  exist  in  Congress,  which  is  to    ,  A^tM^U  f* 
hold  that  it  does  not  exist  at  all  —  that  the  framers  of  the  Constitution     ' 
have  so  worded  that  remarkable  instrument,  that  the  ships  of  all  nations,     S  -^-'^  -^^  ' 
including  our  own,  can,  without  restraint  or  regulation,  deposit  here,  if     UjJijii,-^ 
they  find  it  to  their  interest  to  do  so,  the  entire  European  population  of  ^T^'^y 
criminals,  paupers,  and  diseased  persons,  without  making  any  provision    \:{^c^X  ^^a,  a 
to  preserve  them  from  starvation,  and  its  concomitant  sufferings,  even    ^ 
for  the  first  few  days  after  they  have  left  the  vessel.  <-yW^^A^^^ 

"This  court  is  not  only  asked  to  decide  this,  but  it  is  asked  to  over-    r/j (f~-^    /  ja 
rule  its  decision,  several  times  made  with  unanimit}',  that  the  power   U^jf"^ 
does  reside  in  Congress,  is  conferred  upon  that  body  by  the  express" i^^TX^itj  z^*^ 
language  of  the  Constitution,  and  the  attention  of  Congress  directed  to    -rf- jl  'Cm* 
the  duty  which  arises  from  that  language  to  pass  the  very  law  which  is      .  L 

here  in  question.  K<^  'u^-^P 

' '  That  these  statutes  are  regulations  of  commerce  —  of  commerce  -JLj^  h^A 
with  foreign  nations  —  is  conceded  in  the  argument  in  this  case  ;  and  (' 

that  they  constitute  a  regulation  of  that  class  w^hich  belongs  exclusively  '^'^^  -  '^^ 
to  Congress  is  held  in  all  the  cases  in  this  court.  It  is  upon  these  propo-  ^Zd*^  Vr  ^ 
sitions  that  the  court  has  decided  in  all  these  eases  that  the  State  laws'     /  _ ,,, 

are  void.   .  .   .   [Here  the  court  considers  an  objection  to  the  imposition       _    •  /    /- 
in  question  as  being  not  uniform  and  not  levied  to  "provide  for  the  aa^^U^'^^ 
common  defence  and  general  welfare  of  the  United  States."]  i*^^7*^^ 

"  If  it  were  necessaiy  to  prove  that  the  imposition  of  this  contribu-  / 
tion  on  owners  of  ships  is  made  for  the  general  welfare  of  the  United 
States,  it  would  not  be  difficult  to  show  that  it  is  so,  and  particularly 
that  it  is  among  the  means  which  Congress  may  deem  necessary  and 
proper  for  that  purpose  ;  and  bej'ond  this  we  are  not  permitted  to 
inquire. 

"  But  the  true  answer  to  all  these  objections  is  that  the  power  exer- 
cised in  this  instance  is  not  the  taxing  power.  The^bnrdon  imposed  on 
the  ship  owner  by  this  statute  is  tlie  mere  incident  of  the  regulation  of 
commerce  —  of  that  branch  of  foreign  commerce  wdiich  is  involved  in 
immigration. " 


,760  HEAD   V.   AMOSKEAG   MANUF.   CO.  [CIIAP.  V. 


it^ufct?.^^   HEAD  V.   AMOSKEAG  MANUFACTURING  COMPANY. 

yTiAjL  (U</t^<^l^iflV        Supreme  Court  of  the  United  States,  1885. 

if  Lc'\i^')i.~tl    vl^C^  ^'^  [U3  U.S.  9.] 

\a  i/ZuA~  This  was  a  writ  of  error  to  reverse  a  judgment   of  the   Supreme 

Court  of  the  State  of  New  Hampshire  against  the  plaintiff  in  error, 

X-o.  o^i^^<■         upon  a  petition  filed  by  the  defendant  in  error  (a  coi'poration  estab- 

t^    a  lished  b\'  the  laws  of  New  Hampshire  for  the  manufacture  of  cotton, 

"fi   litt//    woollen,  iron  and  other  materials)  for  the  assessment  of  dama<res  for 

the  flowing  of  his  land  by  its_  mill-dam  at_Ainoskeag  Falls  on  the  Merri- 

fi  ^tM^i        mack  River,  under  the  general  mill  Act  of  tliat  State  of  18G8,  ch.  20, 

L,^y^     which  is  copied  in  the  margin.     [It  is  omitted  here;  the  substance  of 

,  it  sufficiently  appears  in  what  follows.] 

^  a^i'^'^        In  the  petition  filed  in  the  State  court,  the  Amoskeag  Manufacturing 

/O^a.^  Company  alleoed  that  it  had  been  niithorized  by  its  charter  to  purchase 

W  .     ,^  nnfl    hn1r1    tp.i1    pstntp    nnrl    in   Pvppt    thpTPon    siifli    d.nms.  cn.nnls.  mills. 

f  a^LUT'p   ^  buildings,  machines  and  works  as  it  might  deem  necessary  or  useful 

i^,j^fi^      in  carrying  on  its  manufactures  and  business  ;  that  it  had  purchased 

^^  /  the  land  on   both   sides  of  the  Merrimack  River  at  Amoskeag   Falls, 

^liMM^  ^r    including  the  river  and  falls,  and  had  there  built  mills,  dug  canals,  and 

,  y.    ^    psfnblishpd   works,  at  tlip  o.o^t  of  several   millions  of  dollars,  and,  for 

iA/(/i/'yLW<^  the  purpose  of  making  the  whole  power  of  the  river  at  the  falls  avail- 

^    ^      able  for  the  use  of  those  mills,  had  constructed  a  dam  across  the  river ; 

iHit-m^  t^  -  that  the  construction  of  the  mills  and  dam,  to  raise  the  water  for  work- 

^^  .1^  <^    inp-  the  mills,  for  creating  a  reservoir  of  water,  and  for  equalizing  its 

'  'C/i'C'   ^*^^^'  was  of  public  use  and  benefit  to  the   people  of  the   State,  and 

^-^-^^fr"       necessary  for  the  use  of  the  mills  for  which  it  was  designed  ;  and  that 

L^4   '^LkOJy   Head,   the  owner  of  a  tract  of  land,   described  in  the   petition,   and 

/i  L  '  -c     'Joi"^^^^^  ^y  t^^6  ri"^®^'  claimed  damages  for  the  overflowing  thereof  by 

f  Cwjs^li^        ^j^^  ^^^^^^  which  the  corporation  had  been  unable  satisfactorily  to  adjust ; 

J'tiuii    and  ]n-aved  that  it  might  be  determined  whether  the  construcjtion  ofjhe 

/     i  *  mills -and  dam,  and   the  flowing,  if  any,  of  Head's  land  to  the  depth 

^/LaM  ^^"^^    and  extent  that  it  might  or  could  be  flowed  thereby,  were  or  might  be 

^  /Uim^     of  public  use  or  bpnpfit  1o  tlip  ppoplo  of  the   State,  and  whether  they 

/>  /        .         were  necessary  for  the  mills,  and  that  damages,  past  or  future,  to  the 

/ma/  .^lA^      land  bv  the  (construction  of  tlie  dam  might  be  assessed  according  to 

/  ltLf\<.  '-{■  the  statute. 

^^/^  "^^  successive  stages  of  the  proceedings,  by  demurrer,  by  request 

jH -Ui^'to  the  court  after  the  introduction  of  the  evidence  upon  a   trial  by 

(     I  jury,   and  by  motion  in  arrest  of  judgment.  Head  objected  that   the 

-^^        I*  statute  was  nnconstitiitional.  and  that  the  petition  could  not  be  main- 

Cuc^r.  tained.  because  they  contemplated  the  taking  of  his  property  for  private 

.  use,  in  violation  of  the  Fourteenth  Amendment  of  the  Constitution  of 

^Jp  the  United  States,  which  declares  that  no  State  shall  deprive  any  per- 


CHAP,  v.]  HEAD    V.    AxMOSKEAG   MANUF.    CO.  761      ^      '   / 

son  of  property  without  due  process  of  law,  nor  deny  to  any  porson  (Pfytj^  ^''^ 
within  its  jurisdiction  tlie  equal  protection  of  the  laws  ;  as  well  as  in  y-i.-A- '1:zlI^ 
violation  of  the  Constitution  of  the  State,  the  Bill  of  Rights  of  which  /■/  AitC 
declares  that  all  men  have  certain  natural,  essential  and  inherent;  rights,  ^  ^  ^T 
among  which  are  the  acquiring,  possessing  and  protecting  property',  ■^'^'^'f^sj 
and  that  ever}'  member  of  the  community  has  a  right  to  be  protected  xthaa-*^ 
in  the  enjoyment  of  his  property.  ^  J      -/-  /-*i 

ilis  objections  were  overruled  by  the  highest  court  of  New  Hamp- . 
shire,  and  final  judgment  was  entered,  adjudging  that  the  facts  alleged  AX^^iAX.a^^ 
in  the  petition  were  true,  and   that,  upon  payment  or  tender  of  the     Jc/ 
damages  assessed  by  the  verdict,  with  interest,  and  fifty  jjcr  cent  added,     '' 
making  in  all  the  sum  of  $572.43,  tlie  company  Jaave  the  right  to  erect  JLkaAT^'S/^'''^^^^ 
and  maintain  the  dam,  and  to  flow  his  land  forever  to  the  depth  -and    ^f    jl^i.^p< 
extent  to  which  it  might  or  could  be  flowed  or  injured  thereby.     56  N.      U    i/ 
H.  386  ;  59  N.  H.  332,  563.  •  (Z^  -t>-/^ 

Mr.  C.  H.  3Iornson,  for  plaintiff  in  error.  _u       L 

JJtfr.  George  F.  Hoar  and  Mr.  B.  Wadleigh,  for  defendant  in  error.     ^J"  ^ 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court.     He  recited  _  Al'<lc   Pt-v 
the  facts  as  above  stated,  and  continued :  ^ 

The  position  that  the  plaintiS  in  error  has  been  denied  the  equal  pro-    ui,(i\;  /h^ 
tection  of  the  laws  was  not  insisted  upon  at  the  argument.     The  sino:le  . 

question  presented  for  decision  is  whether  he  has  been  dci^rived  of  his  "^-^-^v-^^ 
property  without  due  process  of  law,  in  violation  of  the   Fourteenth     L.  AjuLfj^^^ 
Amendment  of  the  Constitution  of  the  United  States.     It  is  only  as 
bearing  upon  that  question,  that  this  court,  upon  a  writ  of  error  to   a    ^^  cLUrui<^^ 
State  court,  has  jurisdiction  to  consider  whether  the  statute  conforms  to    U   XA/\\.d-f 
the  Constitution  of  the  State.  v 

The  charter  of  the  Amoskeag  Manufacturing  Company,  which 
authorized  it  to  erect  and  maintain  its  mills  and  dam,  gave  it  no 
right  to  flow  the  lands  of  others.  Eastman  v.  Arnoskeag  Manufactur- 
ing Co.,  44  N.  H.  143.  The  proceedings  in  the  State  court  were  had 
under  the,  general  mill  Act  of  New  Hampshire,  which  enacts  that  any 
])erson,  or  any  corporation  authorized  by  its  charter  so  to  do,  may  /  j'^L/l-OxA 
erect  or  maintain  on  his  or  its  own  land  a  water  mill  and  mill-dam  upon  ^/ii^  uMa. 
any  stream  not  navigable,  paying  to  the  owners  of  lands  flowed  the  ^ 

damages  which,  upon  a  petition  filed  in  court  by  either  party,  may  be      ^^  ■ 
assessed,  by  a  committee  or  by  a  jury,  for  the  flowing  of  the  lands  to  ^^   ^u< 
the  depth  and  extent  to  which  they  may  or  can  be  flowed  by  the  dam.    /liftx<.v>i 


c 


N.  H.Stat.  1868,  ch.  20.  ^^^./ 

the  State  of  New  Hampshire  for  private  use,  and  that  an}'  taking  of     ^-^    ^*^  (j 


The  plaintiff  in  error  contends  that  his  property  has  been  taken  b}^ 


private  property  for  private  use  is  without  due  process  of  law.  -.^ict  f^iTH 

The  defendant  in  error  contends  that  the  raising  of  a  water  power  ^p      ' ^ 

upon  a  running  stream  for  manufacturing  purposes  is  a  public  use  ;  that  ^ffiai  <^ 
the    statute   is   a   constitutional   regulation   of  the   rights   of  riparian      <:7^/<- 

owners ;  and  that  the  remedy  given  by  the  statute  is  due  process  of  (f 


t'^T 


7G2  HEAD   V.    AMOSKE.VG    MANUF.    CO.  [CHAP.  V. 

General  mill  Acts  exist  in  a  great  majority  of  the  States  of  the  Ur^' •"  -'' 


iniun.  ^      fV^ 


Such  Acts,  authorizing  lands  to  be  taken  or  flowed  in  invitum,  for  the/J^-  ^ 
ei'ection    and    maintenance   of  mills,    existed    in   Virginia,   Maryland,     -L>f 
Delaware    and   North    Carolina,    as   well    as   in    Massachusetts,   New-    ^    i  AV 
Hamijshire  and  Rhode  Island,  before  the  Declaration  of  Independence  ;  ri  (^    . 
and  exist  at  this  day  in  each  of  these  States,  except  Maryland,  where     ,    '\,K 
they  were  repealed  in  1832.     One  passed  in  North  Carolina  in  1777  has  ^|^ 
remained  upon  the  statute-book  of  Tennessee.     The}'  were  enacted  in 
Maine,  Kentuck}',  Missouri  and  Arkansas,  soon  after  their  admission 
into  the  Union.     The}-  were  passed  in  Indiana,  Illinois,  Micliigan,  Wis- 
consin, Iowa,  Nebraska,  Minnesota,  Mississippi,  Alabama  and  Florida, 
-while  the}-  were  yet  Territories,  and  re-enacted  after  they  became  States. 
They  were  also  enacted  in  Pennsylvania  in  1803,  in   Connecticut   in 
1864,  and  more  recently  in  Vermont,  Kansas,  Oregon,  West  Virginia 
and  Georgia,  but  were  afterwards  repealed  in  Georgia.     The  principal 
statutes  of  the  several  States  are  collected  in  the  margin.     [The  note 
refers  to  the  statutes  of  twenty-nine  States.     It  is  omitted  here.] 

In  most  of  those  States,  their  validity  has  been  assumed,  without 
dispute  ;  and  they  were  never  adjudged  to  be  invalid  anywhere  until 
since  1870,  and  then  in  three  States  only,  and  for  incompatibility  with 
their  respective  constitutions.  Loughbridge  v.  Harris  (1871),  42 
Georgia,  500  ;  Tyler  v.  Beacher  (1871),  44  Vermont,  648  ;  Ryerson  v. 
Broion  (1877),  35  Michigan,  333.  The  earlier  cases  in  Tennessee, 
Alabama  and  New  York,  containing  dicta  to  the  same  effect,  were 
decided  upon  other  grounds.  Harding  v.  Goodlett,  3  Yerger,  40 ; 
3Iemphis  Mailroad  v.  3IempMs,  4  Coldwell,  406  ;  Moore  v.  Wright, 
34  Alabama,  311,  333  ;  Bottoms  v.  Brewer,  54  Alabama,  288  ;  Hay  v. 
Cohoes  Co.,  3  Barb.  42,  47,  and  2  N.  Y.  159. 

The  principal  objects,  no  doubt,  of  the  earlier  Acts  were  grist  mills  ; 
and  it  has  been  generally  admitted,  even  by  those  courts  which  have 
entertained  the  most  restricted  view  of  the  legislative  power,  that  a 
grist  mill  which  grinds  for  all  comers,  at  tolls  fixed  by  law,  is  for  a 
public  use.     See  also  Blair  v.  Cuming  County,  111  U.  S.  363. 

But  the  statutes  of  many  States  are  not  so  limited,  either  in  terms, 
or  in  the  usage  under  them.  In  Massachusetts,  for  more  than  half  a 
century,  the  mill  Acts  have  been  extended  to  mills  for  any  manufactur- 
ing purpose.  Mass.  Stat.  1824,  ch.  153;  Wolcott  Woollen  Manxifac- 
turing  Co.  v.  Upham,  5  Pick,  292  ;  Palmer  Co.  v.  Ferrill,  17  Pick.  58, 
65.  And  throughout  New  England,  as  well  as  in  Pennsylvania,  Vir- 
ginia, North  Carolina,  Kentucky,  and  many  of  the  Western  States,  the 
statutes  are  equally  comprehensive. 

It  has  been  held  in  many  cases  of  high  authority,  that  special  Acts 
of  incorporation,  granted  by  the  legislature  for  the  establishment  of 
dams  to  increase  and  improve  the  water  power  of  rivers  and  navigable 
waters,  for  mechanical  and  manufacturing  purposes,  are  for  a  public 
use.  Sciidder  v.  Trentori  Delaware  Falls  Co.,  Saxton,  694,  728,  729 ; 
Boston  &   Boxbury   3Iill    Corporation  v.    Nexoman,  12   Pick.  467 ; 


CHAP,  v.]  HEAD   V.   AMOSKEAG   MANUF.   CO.  763 

Hazen  v.  Essex  Co.,  12  Cusli.  475  ;  Commonwealth  v.  Essex  Co.,  13 
Gray,  239,  251,  252  ;  Hankins  v.  Lawrence,  8  Blackford,  266  ;  Great 
Falls  Manufacturing  Co.  v.  Fernald,  47  N.  H.  444, 

In  some  of  those  cases,  the  authority  conferred  b}'  general  mill  Acts 
upon  any  owner  of  land  upon  a  stream  to  erect  and  maintain  a  mill  on 
his  own  land  and  to  flow  the  land  of  others,  for  manufacturing  purposes, 
has  been  considered  as  resting  on  the  right  of  eminent  domain,  by 
reason  of  the  advantages  inuring  to  the  public  from  the  improvement  of 
water  power  and  the  promotion  of  manufactures.  See  also  Holyoke 
Co.  V.  Lyman.,  15  Wall.  500,  506,  507  ;  Beekman  v.  Saratoga  &  Sche- 
nectady Railroad,  3  Paige,  45,  73  ;  Talbot  v.  Hudson,  16  Gray,  417, 
426.  And  the  validity'  of  general  mill  Acts,  when  directl}'  controverted, 
has  often  been  upheld  upon  that  ground,  confirmed  by  long  usage  or 
prior  decisions.  Jordan  \.  Woodward,  40  Maine,  317;  Olmstead  v. 
Camj),  33  Conn.  532  ;  Todd  v.  Atistin,  34  Conn.  78  ;  Venard  v.  Cross, 
8  Kansas,  248  ;  Harding  v.  Funk,  8  Kansas,  315  ;  Miller  v.  Troost,  14 
Minnesota,  282  ;  Newcomb  v.  Smith,  1  Chandler,  71  ;  Fisher  v.  Hori- 
con  Co.,  10  Wisconsin,  351;  Babb  v.  Mackey,  10  Wisconsin,  314; 
£ur7iham\.  Thompson,  35  Iowa,  421. 

In  New  Hampshire,  from  which  the  present  case  comes,  the  legis- 
lature of  the  Province  in  1718  passed  an  Act  (for  the  most  part  copied 
from  the  Massachusetts  Act  of  1714),  authorizing  the  owners  of  mills 
to  flow  lands  of  others,  paying  damages  assessed  b}'  a  jur}'.  The  Act 
of  1718  continued  in  force  until  the  adoption  of  the  first  Constitution 
of  the  State  in  1784,  and  afterwards  until  June  20,  1792,  and  was 
then  repealed,  upon  a  general  revision  of  the  statutes,  shortly  before  the 
State  Constitution  of  1792  took  effect.  The  provisions  of  the  Bill  of 
Rights,  on  which  the  plaintiff  in  error  relied  in  the  court  below,  were 
exactly  alike  in  the  two  constitutions.  Special  Acts  authorizing  the 
flowing  of  lands  upon  the  pa3-ment  of  damages  were  passed  afterwards 
from  time  to  time;  among  others,  the  statute  of  July  8,  1862,  author- 
izing the  Great  Falls  Manufacturing  Company  to  erect  a  dam  upon 
Salmon  Falls  River,  which  was  adjudged  by  the  Supreme  Judicial  Court 
of  New  Hampshire  in  1867,  in  an  opinion  delivered  b}'  Chief  Justice 
Perlej',  to  be  consistent  with  the  Constitution  of  that  State,  because 
the  taking  authoi'ized  was  for  a  public  use.  '  Great  Falls  Manufactur- 
ing Co.  V.  Fernald,  47  N.  H.  444.  The  statute  now  in  question,  the 
first  general  mill  Act  passed  by  the  legislature  of  the  vState,  was  passed 
and  took  effect  on  July  3,  1868  ;  was  held  in  Ash  v.  Cummings,  50  N. 
H.  591,  after  elaborate  argument  against  it,  to  be  constitutional,  upon  the 
ground  of  the  decision  in  Great  Falls  Manufacturing  Co.  v.  Fernald ; 
and  was  enforced  without  question  in  Portland  v.  Morse,  51  N.  H.  188, 
and  in  Toivn  v.  Faulkner,  56  N.  H.  255.  In  the  case  at  bar,  and  in 
another  case  since,  the  State  court  held  its  constitutionalit}'  to  be  settled 
by  the  former  decisions.  Amoskeag  Manufacturing  Co.  v.  Head,  56  N. 
H.  386,  and  59  N.  H.  332,  563  ;  Same  v.  Worcester,  60  N.  H.  522. 

The  Question  whether  the  erection    and    maintenance    of  mills    for 


764  HEAD   V.    AMOSKEAG   MANUF.    CO.  [CIIAP.  V. 

manufacturing  purposes  under  a  general  mill  Act,  of  which  an}'  owner 
of  land  upon  a  stream  not  navigable  may  avail  himself  at  will,  can  be 
upheld  as  a  taking,  b}'  delegation  of  the  right  of  eminent  domain,  of 
private  property  for  public  use,  in  the  constitutional  sense,  is  so  im- 
portant  and  far  reaching,  that  it  does^not  become  this  court  to  express 
an  opinion  upon  it,  when  not  required  for  the  determination  of  the 
rights  of  the  parties  before  it.  We  prefer  to  rest  the  decision  of  this 
case  upon  the  ground  that  such  a  statute,  considered  as  regulating  the 
manner  in  which  the  rights  of  proprietors  of  lands  adjacent  to  a 
stream  may  be  asserted  and  enjoyed,  with  a  due  regard  to  the  interests 
of  all,  and  to  the  public  good,  is  within  the  constitutional  power  of  the 
legislature. 

When  propert}-,  in  which  several  persons  have  a  common  interest, 
cannot  be  full}-  and  beneficially  enjoyed  in  its  existing  condition,  the 
law  often  provides  a  way  in  which  they  raa}-  compel  one  another  to  sub- 
mit to  measures  necessary  to  secure  its  beneficial  enjoyment,  making 
equitable  compensation  to  any  whose  control  of  or  interest  in  the  pro- 
perty is  thereby  modified. 

In  the  familiar  case  of  land  held  by  several  tenants  in  common,  or  even 
by  joint  tenants  with  right  of  survivorship,  any  one  of  them  may  compel 
a  partition,  upon  which  the  court,  if  the  land  cannot  be  equally  divided, 
will  order  owelty  to  be  paid,  or  in  many  States,  under  statutes  the  con- 
stitutionality of  which  has  never  been  denied,  will,  if  the  estate  is  such 
that  it  cannot  be  divided,  either  set  it  off  to  one  and  order  him  to  com- 
pensate the  others  in  money,  or  else  order  the  whole  estate  to  be  sold. 
King  V.  Reed,  11  Gra}-,  490;  Bentley  v.  Long  Dock  Co.,  1  McCarter, 
480  ;  s.  c.  on  appeal,  nom.  Manners  v.  Bentley,  2  McCarter,  501  ; 
Mead  v.  Mitchell,  17  N.  Y.  210  ;  Richardson  v.  Monson,  23  Conn.  94. 
Water  rights  held  in  common,  incapable  of  partition  at  law,  may  be  the 
subject  of  partition  in  equity,  either  by  apportioning  the  time  and 
extent  of  use,  or  by  a  sale  of  the  right  and  a  division  of  the  pro- 
ceeds. Smith  V.  Smith,  10  Paige,  470  ;  De  Witt  v.  Hai-vey,  4  Gray, 
486  ;   McGillivray  v.  Evans,  27  Califoi'nia,  92. 

At  the  common  law,  as  Lord  Coke  tells  us,  "  If  two  tenants  in  com- 
mon, or  joint  tenants,  be  of  an  house  or  mill,  and  it  fall  in  decay,  and 
the  one  is  willing  to  repair  the  same,  and  the  other  will  not,  he  tiiat  is'' 
willing  shall  have  a  writ  de  reparatione  facienda  ;  and  the  writ  saith, 
ad  reparationem  et  sustentationem  ejusdem  dovius  teneantur  ;  whereb}'  CJS^    M> 
it  appeareth  that  owners  are  in  that  case  bound  pro  bono  puhlico  to  j^ 

maintain  houses  and  mills  which  are  for  habitation  and  use  of  men."  /^ 
Co.  Lit.  200  ^/  4  Kent  Com.  370.  In  the  same  spirit,  the  statutes  of 
Massachusetts,  for  a  hundred  and  seventy-five  years,  have  provided  that 
any  tenant  in  common  of  a  mill  in  need  of  repair  may  notify  a  gene r al 
meeting  of  all  the  owners  for  consultation,  and  that,  if  any  one  refuses 
to  attend,  or  to  agree  with  the  majority,  or  to  pay  his  share,  the  majority 
may  cause  the  repairs  to  be  made,  and  recover  his  share  of  the  expenses 
out  of  the  mill  or  its  profits  or  earnings.     Mass.  Prov.  Stat.  1709,  ch. 


^<::i 


CHAP,  v.]  HEAD   V.   AMOSKEAG   MANUF.    CO.  765 

3,  1  Prov.  Laws  (State  ed.)  G41,  and  Anc.  Chart.  388;  Stat.  1795,  ch. 
74,  §§  5-7  ;  Rev.  Stat.  1836,  ch.  116,  §§  44-58  ;  Gen.  Stat.  1860,  ch.  149, 
§§  53-64;  Pub.  Stat.  1882,  ch.  190,  §§  59-70,  And  the  statutes  of 
New  Hampshire,  for  more  tlian  eight}'  years,  have  made  provision  for 
compelling  the  repair  of  mills  in  such  cases.  Roberts  v.  Peaoey^  7 
Foster,  477,  493. 

The  statutes  which  have  long  existed  in  many  States  authorizing  the 
majority  of  the  owners  in  severalty  of  adjacent  meadow  or  swamp  lands 
to  have  commissioners  appointed  to  drain  and  improve  tlin  whole  ti-.-ir't^ 
by  cutting  ditches  or  otherwise,  and  to  assess  and  levy  the  amount  of 
the  expense  uijon  all  the  ijroiM'ietors  in  proportion  to  the  beneflts  re- 
ceived, have  been  often  upheld,  independently  of  any  effect  upon  tiie 
public  health,  as  reasonable  regulations  for  the  general  advantage  of 
those  who  are  treated  for  this  purpose  as  owners  of  a  common  property. 
Coomes  y.~Biirt,  22  Pick.  422  ;  Wriffht  v.  Boston,  9  Cush.  233,  241  ; 
Sherman  v.  Tobey,  3  Allen,  7  ;  Lowell  v.  Boston,  111  Mass.  454,  469  ; 
French  v.  Kirkland,  1  Paige,  117;  People  v.  Brooklyn,  4  N.  Y.  419, 
438;  Coster  v.  Tide  Water  Co.,  3  C.  E.  Green,  54,  68,  518,  531; 
G'ReUey  v.  Kankakee  Valley  Draining  Co.,  32  Indiana,  169. 

By  the  maritime  law,  based,  as  Lord  Tenterden  observed,  on  the 
consideration  that  the  actual  employment  of  ships  is  "a  matter,  not 
merely  of  private  advantage  to  the  owners,  but  of  pu])lic  benefit  to  the 
State,"  and  recognized  in  the  decisions  and  the  rules  of  this  court,  courts 
of  admiralty,  when  the  part-owners  of  a  ship  cannot  agree  upon  her 
employment,  authorize  the  majority  to  send  her  to  sea,  on  giving 
securit}"  to  the  dissenting  minority,  to  bring  back  and  restore  the  ship, 
or,  if  she  be  lost,  to  pay  them  the  value  of  their  shares  ;  and  in  such 
case  the  minorit}-  can  neither  recover  part  of  the  profits  of  the  vo3'age 
nor  compensation  for  the  use  of  the  ship.  Abbott  on  Shipping,  pt.  1 , 
ch.  3,  §§  2,  3  ;  The  Steamboat  Orleans,  11  Pet.  175,  183  ;  Rule  20  in 
/-  Admiralty,  3  How.  vii. ;  The  Marengo,  1  Lowell,  52.  If  the  part- 
owners  are  equallj-  divided  in  opinion  upon  the  manner  of  employing 
the  ship,  then,  according  to  the  general  maritime  law,  recognized  and 
applied  b}-  Mr.  Justice  Washington,  the  ship  may  be  ordered  to  be  sold 
and  the  proceeds  distributed  among  them.  The  Seneca,  18  Am.  Jur. 
485 ;  s.  c.  3  Wall.  Jr.  395.  See  also  Story  on  Partnership,  §  439  ; 
The  Nelly  Schneider,  3  P.  D.  152. 

But  none  of  the  cases,  thus  put  hj  way  of  illustration,  so  strongl}' 
call  for  the  interposition  of  the  law  as  the  case  before  us. 

The  right  to  the  use  of  running  water  is  publici  jians,  and  common 
to  all  the  proprietors  of  the  bed  and  banks  of  the  stream  from  its 
source  to  its  outlet.  Each  has  a  right  to  the  reasonable  use  of  the 
water  as  it  flows  past  his  land,  not  interfering  with  a  like  reasonable 
use  by  those  above  or  below  him.  One  reasonable  use  of  the  water  is  the 
use  of  the  power,  inherent  in  the  fall  of  the  stream  and  the  force  of  the 
current,  to  drive  mills.  That  power  cannot  be  used  without  damming  iip 
the  water,  and  thereby  causing  it  to  flow  back.      If  the  water  thus 


7G6  HEAD    V.   AMOSKEAG   MANUF.    CO.  [CIIAP.  V. 

dammed  up  by  one  lii^arinn  proprietor  spread  over  the  lands  of  others , 
thev  could  at  common  hiw  hnna  successive  actions  a«iaiust  him  for  the 
injury  so  done  them,  or  even  have  the  dam  abated.  Before  the  mill 
Acts,  therefore,  it  was  often  impossible  for  a  riparian  proprietor  to  use 
the  water  power  at  all,  without  the  consent  of  tliose  above  him.  The 
]>"ur|)ose  of  these  statutes  is  tn  Pn.-iblp.  nny  ripnrign  [)roprietor  to  erect 
a  mill  and  use  the  water  power  of  the  stream,  provided  he  does  not 
interfere  with  an  earher  exercise  by  another  of  a  like  right  or  with  any 
right  of  the  public  ;  muT  to  substbutf,  for  the  common-l.-iw  vttiucdics 
rJ-  roppnted  .'iftions  for  dnmnges  Mud  prostration  of  the  dam,  a  new 
form  of  remedy,  by  which  any  one  whose  land  is  flowed  can  have 
assessed,  once  for  all,  either  in  a  gross  sum  or  by  way  of  annual 
damages,  adequate  compensation  for  the  injury. 

This  view  of  the  principle  upon  which  general  mill  Acts  rest  has 
been  fully  and  clearly  expounded  in  the  judgments  delivered  by  Chief 
Justice  Shaw  in  the  Supreme  Judicial  Court  of  Massachusetts. 

In  delivering  the  opinion  of  the  court  in  a  case  decided  in  1832,  be 
said:  "  The  statute  of  1796  is  but  a  revision  of  a  former  law,  and  the 
origin  of  these  regulations  is  to  be  found  in  the  provincial  statute  of 
1714.  They  are  somewhat  at  variance  with  that  absolute  right  of 
dominion  and  enjoyment  which  every  proprietor  is  supposed  by  law  to 
have  in  his  own  soil ;  and  in  ascertaining  their  extent  it  will  be  useful 
to  inquire  into  the  principle  upon  which  they  are  founded.  We  think 
they  will  be  found  to  rest  for  their  justification,  partly  upon  the  interest 
which  the  community  at  large  has  in  the  use  and  employment  of  mills, 
and  partly  upon  the  nature  of  the  property,  which  is  often  so  situated 
that  it  could  not  be  beneficially  used  without  the  aid  of  this  power.  A 
stream  of  water  often  runs  through  the  lands  of  several  proprietors. 
One  may  have  a  sufficient  mill- si  to  on  his  own  land,  with  ample  space 
on  his  own  land  for  a  mill-pond  or  reservoir,  but  yet,  from  the  operation 
of  thp  wplUknown  physical  law  tliat  fluids  will  seek  and  find  a  level,  he 
cannot  use  his  own  property  without  flowing  the  water  back  more  or 
less  on  the  lands  of  some  other  proprietor.  We  think  the  power  given 
by  statute  w-as  intended  to  apply  to  such  cases,  and  that  the  legislature 
meant  to  provide  that,  as  the  public  interest  in  such  case  coincides 
with  that  of  the  mill-owner,  and  as  the  mill-owner  and  the  owner  of 
lands  to  be  flowed  cannot  both  cniov  their  full  rights,  without  some  in- 
terference, the  latter  shall  yield  to  the  former,  so  far  that  the  form e r 
may  keep  up  his  mill  and  head  of  water,  p-otwithstanding  the  damage 
done  to  the  latter,  upon  payment  of  an  equitable  compensation  for  the 
real  damage  sustained,  to  be  ascertained  in  the  mode  provided  by  the 
statute."  "From  this  view  of  the  object  and  purpose  of  the  statute, 
we  think  it  quite  manifest  that  it  was  designed  to  provide  for  the  most 
useful  and  beneficial  occupation  and  enjoyment  of  natural  streams  and 
watercourses,  where  the  absolute  right  of  each  proprietor  to  use  his 
own  land  and  water  privileges,  at  his  own  pleasure,  cannot  be  fully 
enjoyed,  and  one  must  of  necessity,  in  some  degree,  yield  to  the  other." 
Fiske  V.  Framingham  Ma^iufacturinrj  Co.^  12  Pick.  68,  70-72. 


CHAP,  v.]         HEAD  V.   AMOSKEAG  MANUF.  CO.  7G7 

In  another  case,  decided  almost  tvvent\'  years  later,  he  said  :  "  The  re- 
lative rights  of  land-owners  and  niili-owners  are  founded  on  the  estab- 
lished rnle  of  the  common  law,  tliat  every  proprietor,  through  whose 
territor}'  a  current  of  water  flows,  in  its  course  towards  the  sea,  has  an 
equal  right  to  the  use  of  it,  for  all  reasonable  and  beneficial  purposes, 
including  the  power  of  such  stream  for  driving  mills,  subject  to  a  like 
reasonable  and  beneficial  use,  by  the  proprietors  above  him  and  below 
him,  on  the  same  stream.  Consequently  no  one  can  deprive  another  of 
his  equal  right  and  beneficial  use,  by  corrupting  the  stream,  by  wholly 
diverting  it,  or  stopping  it  from  the  proprietor  below  him,  or  raise  it 
artificiallv,  so  as  to  cause  it  to  flow  back  on  the  land  of  the  proprietor 
above.  Tliis  rule,  in  this  Commonwealth,  is  slightly  modified  b}^  the 
mill  Acts,  by  the  well-known  provision,  that  when  a  proprietor  erects 
a  dam  on  his  own  land,  and  the  effect  is,  by  the  necessary  operation  of 
natural  laws,  that  the  water  sets  back  upon  some  land  of  the  proprietor 
above,  a  consequence  which  he  may  not  propose  as  a  distinct  purpose, 
but  cannot  prevent,  he  shall  not  therebj*  be  regarded  as  committing  a 
tort,  and  obliged  to  prostrate  his  dam,  but  may  keep  up  his  dam,  pa^'- 
ing  annual  or  gross  damages,  the  equitable  assessment  of  which  is  pro- 
vided for  by  the  Acts.  It  is  not  a  right  to  take  and  use  the  land  of  the 
prq[)rietor  above,  against  his  will,  but  it  is  an  authority  to  use  his  own 
land  and  water  privilege  to  his  own  advantage  and  for  the  benefit  of  the- 
community.  It  is  a  provision  by  law,  for  veoiiln.tino-  the  riohts  of  pro- 
prietors, on  one  and  the  same  stream,  from  its  rise  to  its  outlet,  in  a 
manner  best  calculated,  on  the  whole,  to  promote  and  secure  their 
common  rights  in  it."  Bates  v.  Wei/moiith  Iron  Co.,  8  Cush.  548,  552, 
553. 

Other  opinions  of  Chief  Justice  Shaw  illustrate  the  same  view. 
Williams  v.  Nelson,  23  Pick.  141,  143;  French  v.  Braintree  Manu- 
facturing Co.,  23  Pick.  216,  218-221 ;  Carij  v.  Daniels,  8  Met.  466, 
476,  477;  Ifurdoek  y.  Stickney,  8  Cush.  113,  116;  Gould  v.  Boston 
Duck  Co.,  13  Gray,  442,  450.  It  finds  more  or  less  distinct  expression 
in  other  authorities.  Lowell  v.  Boston,  111  Mass.  464-466;  United 
States  V.  A7nes,  1  Woodb.  &  Min.  76,  88  ;  Waddy  v.  Johnson,  5  Ire- 
dell, 333,  339  ;  Jones  v.  Skinner,  61  Maine,  25,  28  ;  Omstead  v.  Camp, 
33  Conn.  547,  550 ;  Chief  Justice  Redfield,  in  12  Am.  Law  Reg.  (n.  s.) 
498-500.  And  no  case  has  been  cited  in  which  it  has  been  considered 
and  rejected. 

Upon  principle  and  authority,  therefore,  independently  of  any  weight 
due  to  the  opinions  of  the  courts  of  New  Hampshire  and  other  States, 
maintaining  the  validit}'  of  general  mill  Acts  as  taking  private  property 
for  public  use,  in  the  strict  constitutional  meaning  of  that  phrase,  the 
statute  under  which  the  Amoskeag  Manufacturing  Company  has  flowed 
the  land  in  question  ^s  clearly  valid  as  a  iust  and  reasonable  exorcise  Of 
the  power  of  the  le,ffis1atin-e,  having  regard  to  the  ]3ublic  good,  m  a  more 
general  sense,  as  well  as  to  tlie  rights  of  the  riixarian  i)r()|)netors,  to 
regulate  the  use  of  the  water  powerof  running  streams,  which  without 


768 


WURTS   V.    HOAGLAND    ET   AL. 


[chap.  V. 


some  sucli  regulation  couUl  not  be  beneficiall}-  used.  The  statute  does  not 
authorize  new  mills  to  be^efectecl  to  the  detrimeiPE  of  existing  mills  and 
mill  privileges.  And  b}'  providing  for  an  assessment  of  full  compen- 
sation to  the  owners  of  lands  flowed,  it  avoids  the  difficult}-  which 
arose  in  the  case  of  Pumpdbj  v.  Green  Baij  Co.,  13  Wall.  166. 

Beint;  a  constitutional  exercise  of  legislative  power,  and  providing  a 
suitable  remedy,  by  trial  in  the  regular  course  of  justice,  to  recover 
compensation  for  the  injury  to  the  land  of  the  plaintiff  in  error,  it  has 
not  deprived  him  of  his  property  without  due  process  of  law^,  in  vio- 
lation of  the  Fourteenth  Amendment  of  the  Constitution  of  the  United 
States.  M'alker  v.  Sauulnet^  92  U.  S.  90  ;  Davidson  v.  JS^'eio  Orleans, 
96  U.  S.  97  ;  Hurtado  v.  California,  110  U.  S.  516  ;  Hagar  v.  Recla- 
mation District,  111  U.  S.  701.  Judgment  affirmed.'^ 

Mr.  Justice  Blatchford  did  not  sit  in  this  case,  or  take  any  part 
in  its  decision. 


WURTS  V.    HOAGLAND  et  al. 

Supreme  Court  op  the  United  States.     1885. 

[114  U.  S.  606.] 

This  was  a  writ  of  error  by  the  devisees  of  Mary  V.  Wurts  to  reverse 
a  judgment  confirming  an  assessment  of  commissioners  for  the  drainage 
of  lands  under  the  statute  of  New  Jersey  of  March  8,  1871,  tlie 
material  provisions  of  which  are  as  follows.  [These  will  be  found  in  a 
note."^] 

1  Compare  Lowell  v.  Boston,  111  Mass.  454,  464-471  (1873),  Turner  v.  Nije,  154 
Mass.  579  (1891),  infra,  893.  —  Ed. 

2  By  §  1,  "the  Board  of  Managers  of  the  Geological  Survey,  on  the  application  of 
at  least  five  owners  of  separate  lots  of  land  included  in  any  tract  of  land  in  this  State 
which  is  subject  to  overflow  from  freshets,  or  which  is  usually  in  a  low,  marshy,  boggy 
or  wet  condition."  are  authorized  to  examine  the  tract,  and,  if  they  deem  it  for  the 
interest  of  the  public  and  of  the  land  owners  to  be  affected  thereby,  then  to  make 
surveys,  and  decide  upon  and  adopt  a  svstem  of  drainage,  and  report  it  to  the  Supreme 
Court  of  the  State  ;  and  thereupon  tlie  court,  upon  reasonable  notice  published  in  a 
newspaper  circulating  in  the  county  where  the  tract  is,  shall  appoint  three  commis- 
sioners to  superintend  and  carry  out  the  system  of  drainage  so  adopted  and  reported ; 
"  provided,  that  if.  at  the  time  fixed  for  such  appointment  of  commissioners,  it  shall 
appear  to  the  court  by  the  written  remonstrance  of  the  owners  of  a  majority  of  the 
ni^jtl  /l/l//2iH  said  low  and  wet  lands  duly  authenticated  by  affidavit,  that  they  are  opposed  to  the 
drainage  thereof  at  the  common  expense,  then  the  said  court  shall  not  appoint  such 


commissioners. 

By  §  2,  the  commissioners  shall  cause  the  tract  to  he  drained  in  accordance  with 

V     the  general  plan  of  the  board  of  managers,  and,  after  the  completion  of  the  work, 

report  to  the  Supreme  Court  the  expense  thereof,  together  with  a  general  description 

of  the  lands  which,  in  their  judgment,  ought  to  contribute  to  the  expense ;  notice  of 

/^  L    the  report  shall  be  published  for  four  weeks,  in  order  that  any  persons  interested  may 

l^t'^^'^  ^,      /      examine  the  report,  and  hie  ohjections  to  it ;  if  any  such  objections  are  filed  within  the 

,  fj   Cd^  H'     fourjveeks,  the  Supreme  Court  shall  determine  upon  the  same  in  a  summary  manner, 


\Ay^a^x  >«u^^ai^^iXMrvv   Urtn^-^-^^  ^^^ 


/V./VX" 


CHAP,  v.]  WURTS   V.    HOAGLAND    ET   AL.  769    c^-^^  '^  ^^^-"^ 

B3'  proceedings  had  in  accordance  with  this  statjite,  the  Board  of  nf      f-^ 

Managers  of  the  Geological  Survey,  ui)on  tlie  application  of  more  than  vJuT 

five  owners  of  separate  lots  of  land  situated  in  the  tract  of  land  known  '^'^^  ■ 

as  the  Great  Meadows  on  the  Pequest  River,  examined  and  surveyed  A.vc«.ct:<^ 

the  entir(!  tract,  and  reported  a  plan  for  draining  it  to  the  Supreme  <?*.xtur\v  • 

Court,  and  on  November  15,  1872,  three  commissioners  were  appointed  -^n          /  (     ■ 

to  carry  the  plan  into  execution.  '■'^    \     o" 

Pending  the  proceedings,  on  March  19.  1874,  a  su])plcmental  statute  ihXM^i-  ^\i^i^ 

was  passed,  b}'  §  2  of  which,  "  if  the  said  commissioners,  after  having  \t    J  1 

commenced  tlie  drainage  of  such  tract,  and  proceeded  therewith,  sliall,  '         \  ^ 

before  the  drainage  of  the  same  shall  be  completed,  be  compelled  to  Ja>^'-^Y\'t^ '^ 

suspend  the  completion  thereof,  from  any  inabiHtv  at  that  time  to  raise  P    ajsji' 
the  money  required  therefor,  they  shall  proceed  to  ascertain  the  tracts 

of  land  benefited  or  intended  to  be   benefited  by  said  drainage,  and  :t^   ^"^IM.  ^^ 

the  relative  proportions  in  which  the  said  respective  tracts  have  been  L.  fj^i 

or  will  be  benefited  thereby,  and  also  the  expenses  already  incurred  in  1/ 

said  drainage,  and  as  near  as  may  be  the  additional  expenses  required  /^     (X^^^^-^ 

for  the  completion  thereof,''   and  make  and   report   to  the  court  an  -,^yiAAn:iaM^ 

assessment  of  such  expenses.  JLouUi.  »^twA 

In  accordance  with  that  provision  of  the  statute  of  1874,  the  com- 
missioners, before  completing  the  work,  made  and  reported  to  the  court  j  J  .'XiMbCt' 
an  assessment  based  upon  an  estimate  of  contemplated  benefits,  which  /^. 

and,  without  further  notice,  make  an  order  directing  the  commissiouers  "  to- distribute   -^     ^  /        71 
and  assess  the  amount  of  said  expense  and  interest,  upon  the  lands  contained  within    paX/Ja^'^ 
the  territory  reported  by  them  originally,  or  as  corrected  by  the  Supreme  Court,  in     <3       a  itJtZffU.^ 
proportion,  as  near  as  they  can  judge,  to  the  benefit  derived  from  said  drainap'e  by  the  f\ 

several  parcels  of  land  to  be  assessed ; "  the  assessment,  when  completed,  shall  be  t  l^. 

deposited  in  some  convenient  place  for  inspection  by  the  parties  interested,  and  notice 
of  the  completion  of  the  assessment,  and  of  the  place  where  it  is  deposited,  published 
for  six  weeks,  designating  a  time  and  place  when  and  where  the  commissioners  will     7/  '    / 

meet  to  hear  objections  to  the  assessment ;  and  the  commissioners,  having  heard  and'      i*-^^    ^' 
decided  upon  such  objections  as  shall  be  made  to  them,  shall  proceed  to  complete  their  yJntXA. 

assessment  and  file  it  in  the  clerk's  office  of  the  Supreme  Court,  and  notice  of  the  filing    ^l'"*'^  ^ 


shall  be  published  for  four  weeks,  after  which,  if  no  objections  have  been  made  to  the— ^^  q 

assessment,  it  shall  be  confirmed  by  the  court ;  any  objections  filed  within  the  four  / 

weeks  the  Supreme  Court  shall  hear  and  determine  in  a  summary  manner,  but  "  shall      ifciXXAy   '^^^^ 

not  reverse  said  assessment  or  any  part  thereof,  except  for  some  error  in  law,  or  in 

the  principles  of  assessment,  made  or  committed  by  said  commissioners  ;  "  if  for  any  -W/ai    I  'flfe^ 

such  cause  the  assessment  or  any  part  thereof  shall  be  reversed,  it  shall  be  referred  to  V         1 

the  commissioners  to  be  corrected  accordingly,  and,  when  it  shall  have  been  corrected        ^y  Q/^^^Jf^^ 

and  filed,  like  proceedings  shall  be  had,  until   the  court  shall  finally  confirm  the 

assessment ;   and  thereupon  the  commissioners  shall  publish  notice  for  four  weeks,  •j-yj^  uyO/^  Ji^ 

requiring  the  several  owners  or  other  parties  interested  in  the  lands  assessed  to  pay  (' 

their  assessments.  _j-    '  _    ,       jK 

By  §  3,  further  provisions  are  made  for  collecting  the  assessment  by  demand  on"  j 

the  owner  of  the  lands  assessed,  and  if  he  cannot  be  found,  or  neglects  or  refuses  to  /o-ca.'^ 

pay,  then  by  sale  of  his  land  for  the  least  number  of  years  that  any  person  will  take    "^ 
the  same. 

By  §  5,  the  commissioners  may  from  time  to  time  borrow  the  necessary  moneys  to 
carry  on  the  M'ork  of  draining  the  lands,  and  give  their  l)onds  as  such  commis- 
sioners therefor,  and  pledge  for  the  repayment  thereof  the  assessment  to  be  made  as 
aforesaid. 

VOL.  I.  —  49 


770  WURTS   V.    HOAGLAND   ET   AL.  [CIIAP.  V. 

was,  for  that  reason,  upon  objections  filed  by  Mrs.  Wurts,  set  aside  by 
an  order  of  the  Supreme  Court,  allirmed  by  the  Court  of  Errors.  10 
Vroom,  433  ;   12  Vroom,  175. 

On  May  17,  1879,  after  the  completion  of  the  work,  the  commis- 
sioners made  a  report  to  the  court,  ))ui:suant  to  the  statute  of  1871, 
showing  the  expense  to  have  been  $107,916.07.  No  objections  to  that 
report  having  been  filed  after  four  weeks'  notice,  the  court  on  June  23, 
ordered  the  commissioners  to  distribute  that  sum  '• '  upon  the  land  men- 
t i oned  in  their  said  report,  in  ])roportion,  as  nearly  as  they  can  .judge,  to 
the  benefit  derived  from  said  drainaoe  by  the  several  parcels  of  land  to 
be  assessed."  The  commissioners  made  an  assessment  accordingly,  the 
proportion  of  which  on  the  lands  of  Mrs.  Wurts  was  $13,347.84,  and, 
after  notice  to  and  hearing  of  all  parties  who  desired  to  object  to  the 
assessment,  reported  it  to  the  Supreme  Court,  which  directed  it  to  be 
modified  as  to  certain  lands  of  other  parties  lying  outside  the  original 
survey,  and  in  other  respects  confirmed  the  assessment,  notwithstand- 
ing  objections  made  to  it  by  the  devisees  of  Mrs.  Wurts ;  and  Ms 
judgment  was  affirmed  in  the  Court  of  Errors.  13  Vroom,  553;  14 
Vroom,  456.  The  judgment  of  the  Court  of  Errors  was  the  final 
judgment  in  the  case,  and  this  writ  of  error  was  addressed  to  the 
Supreme  Court  because  at  the  time  of  suing  out  the  writ  of  error  the 
record  had  been  transmitted  to  that  court  and  was  in  its  possession. 
105  U.  S.  701. 

r  The  error  assigned  was  that  '■'■  the  Act  of  March  8,  1871,  upon  which 
I  the  said  judgment  and  proceedings  are  founded,  violates  the  Consti- 
tution of  the  United  States  in  this,  that  it  deprives  the  plaintifl's  in 
error  of  their  property  without  due  process  of  law,  and  denies  to 
them  the  equal  protection  of  the  laws,  and  violates  the  first  section 
I  of  the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
Nutates." 

3Ir.  Samuel  Dickson  and  3Ir.  J.  G.  Shipman^  for  plaintiffs  in 
error. 

Mr.  Theodore  Little,  for  defendants  in  error. 

Mr.  Justice  Gray,  after  making  the  foregoing  statement  of  facts, 
delivered  the  opinion  of  the  court. 

General  laws  authorizing  the  drainage  of  tracts  of  swamp  and  low 
lands,  by  commissioners  appointed  upon  proceedings  instituted  b}'  some 
of  the  owners  of  the  lands,  and  the  assessment  of  the  whole  expense  of 
the  work  upon  all  the  lands  within  the  tract  in  question,  have  long 
existed  in  the  State  of  New  Jerse}-,  and  have  been  sustained  and  acted 
on  by  her  courts,  under  the  Constitution  of  1776,  as  well  as  under  that 
of  1844.  Stats.  December  23,  1783,  Wilson's  Laws,  382;  November 
29,  1788,  and  November  24.  1792,  Paterson's  Laws,  84,  119  ;  Jones  v. 
Lore,  Pennington,  1048;  Doremus  v.  Smith,  1  Southard,  142;  West- 
cott  V.  Garrison,  1  Halsted,  132  ;  State  v.  Frank  &  Guisbert  Creek 
Co.,  2  J.  S.  Green,  301  ;  State  v.  Newarlc,  3  Dutcher,  185,  194  ; 
Berdan  v.  Miser  Drainage  Co.,  cited  3  C.  E.  Green,  69  ;   Coster  v. 


CHAP,  v.]  WURTS   V.    IIOAGLAND    ET   AL.  771 

Tide  Water  Co.,  3  C.  E.  Green,  54,  G8,  518,  531  ;  State  v.  Blake, 
6  Vroom,  208,  and  7  Vroom,  -442  ;  Jloaglaiul  v.  Wurts,  12  Vroom, 
175,   179. 

In  State  v.  Neicark,  3  Dutcher,  185,  194,  the  Supreme  Court  said : 
"  Laws  for  the  drainage  or  embanking  of  low  grounds,  and  to  provide 
for  the  expense,  for  tlie  mere  benefit  of  the  proprietors,  without  refer- 
ence to  tlie  public  good,. are  to  be  classed,  not  under  the  taxing,  but  the 
police  power  of  the  government." 

In  Coster  v.  Tide  Water  Co.,  3  C.  E.  Green,  54,  518,  the  same  view 
was  strongh'  asserted  in  the  Court  of  Chancer}'  and  in  the  Court  of 
Errors.  The  point  there  decided  was  that  a  statute  providing  for  the 
drainage  of  a  large  tract  of  land  overflowed  b}'  tide-water,  b}'  a  corpo- 
ration chartered  for  the  purpose,  none  of  the  members  of  which  owned 
any  lands  within  the  tract,  if  it  could  be  maintained  as  an  exercise  of 
the  right  of  eminent  domain  foi'  a  public  use,  yet  could  not  authorize  an 
assessment  on  the  owners  of  such  lands  for  anything  beyond  the  bene- 
fits conferred  upon  them.  But  the  case  was  clearly  and  sharply 
distinguished  from  the  case  of  the  drainage  of  lands  for  the  exclusive 
benefit  of  the  owners  upon  proceedings  instituted  bj-  some  of  them. 

Chancellor  Zabriskie  said:  "  But  there  is  another  branch  of  legisla- 
tive power  that  ma}-  be  appealed  to,  as  authorizing  the  taking  of  the 
lands  required  for  the  works  to  drain  these  meadows.  It  is  the  power 
of  the  government  to  prescribe  public  regulations  for  the  better  and 
more  economical  management  of  property  of  persons  whose  property 
adjoins,  or  which,  from  some  other  reason,  can  be  better  managed  and 
improved  by  some  joint  operation,  such  as  the  power  of  regulating  the 
building  of  part}'  walls  ;  making  and  maintaining  partition  fences  and 
ditches  ;  constructing  ditches  and  sewers  for  the  draining  of  uplands 
or  marshes,  which  can  more  advantageously  be  drained  by  a  common 
sewer  or  ditch.  This  is  a  well-known  legislative  power,  recognized 
and  treated  of  by  all  jurisconsults  and  writers  upon  law  through  the 
civilized  world  ;  a  branch  of  legislative  power  exercised  by  this  State 
before  and  since  the  Revolution,  and  before  and  since  the  adoption  of 
the  present  Constitution,  and  repeatedly  recognized  by  our  courts. 
The  legislature  has  power  to  regulate  these  subjects,  either  by  gene- 
ral law,  or  b}-  particular  laws  for  certain  localities  or  particular  and 
defined  tracts  of  land.  When  the  Constitution  vested  the  legislative 
power  in  the  Senate  and  General  Assembly,  it  conferred  the  power  to 
make  these  public  regulations  as  a  well  understood  part  of  that  legisla- 
tive power."  "  The  principle  of  them  all  is,  to  make  an  improvement 
common  to  all  concerned,  at  the  common  expense  of  all.  And  to  elfect 
this  object,  the  Acts  provide  that  the  works  to  effect  the  drainage  ma}' 
be  located  on  any  part  of  the  lands  drained,  paying  the  owner  of  the 
land  thus  occupied  compensation  for  the  damage  by  such  use.  So  far 
private  property  is  taken  by  them  ;  farther  it  is  not.  In  none  of  them 
is  the  owner  divested  of  his  fee,  and  in  most  there  is  no  corporation  in 
which  it  could  be  vested,  and  for  all  other  purposes  the  title  of  the  land 


772  WURTS   V.    IIOAGL.VND    ET   AL.  [CIIAr.  V. 

remained  in  tlic  owner.  To  effect  sueli  common  drainage,  power  was 
in  some  cases  given  to  continue  those  drains  through  adjacent  lands 
not  drained,  upon  compensation .  All  this  was  an  ancient  and  well- 
known  exercise  of  legishitivc  power,  and  may  well  be  considered  as 
included  in  the  grant  of  legislative  power  in  the  Constitution."  3  C.  E. 
Green,  C8-71. 

Chief  Justice  Beasle^-,  in  delivering  the  judgment  of  the  Court  of 
Errors,  enforced  the  same  distinction,  saying :  "  This  case,  with  regard 
to  the  grounds  on  which  it  rests,  is  to  be  distinguished  from  that  class 
of  proceedings  b}'  which  meadows  and  other  lands  are  drained  on  the 
application  of  the  land  owners  themselves.  In  the  present  instance, 
the  State  is  the  sole  actor,  and  public  necessit}-  or  convenience  is  the 
onh'  justification  of  her  intervention.  But  the  regulations  established 
by  the  legislative  power,  whereby  the  owMiers  of  meadow  lands  are  com- 
pelled to  submit  to  an  equal  burden  of  the  expense  incurred  in  thoi r 
improvement,  are  rules  of  police  of  the  same  character  as  provisions 
concerning  party  walls  and  partition  fences.  To  these  cases,  therefore, 
the  principle  upon  which  the  decision  of  the  present  case  rests  is  not  to 
be  extended."     3  C.  E.  Green,  531. 

These  full  and  explicit  statements  have  been  since  treated  b}'  the 
couits  of  New  Jersey  as  finalh*  establishing  the  constitutionality  of  such 
statutes. 

In  State  v.  JBlake,  6  Vroom,  208,  and  7  Vroom,  442,  a  statute  autho- 
rizing a  tract  of  swamps  and  marsh  lands  to  be  drained  by  commissioners 
elected  by  the  owners  of  the  lands,  and  the  entire  expense  assessed  upon 
all  the  owners,  was  held  to  be  constitutional,  although  no  appeal  was 
given  from  the  assessment.  In  the  Supreme  Court  it  was  said  :  "  This 
branch  of  legislative  power  which  regulates  the  construction  of  ditches 
and  secures  the  drainage  of  meadows  and  marsh}'  lands  has  been  exer- 
cised so  long,  and  is  so  fully  recognized,  that  it  is  now  too  late  to  call 
it  in  question.  It  is  clearly  affirmed  in  T/ie  Tide  Water  Co.  v.  Coster^ 
and  cannot  be  opened  to  discussion."  6  Vroom,  211.  And  the  Court 
of  Errors,  in  a  unanimous  judgment,  approved  this  statement  of  the 
Supreme  Court,  as  well  as  that  of  Chief  Justice  Beasley,  in  Coster  v. 
Tide  Water  Co.,  above  quoted,  7  Vroom,  447,  448. 

The  constitutionality  of  the  statute  of  1871,  under  which  the  proceed- 
ings in  the  case  at  bar  were  had,  was  upheld  by  the  Supreme  Court  and 
the  Court  of  Errors  upon  the  ground  of  the  previous  decisions.  In  re 
Loiver  Chatham  Drainage^  6  Vroom,  497,  501  ;  In  re  Pequest  River 
Drainarie,  10  Vroom,  433,  434;  12  Vroom,  175,  179  ;  13  Vroom,  553, 
554,  and  14  Vroom,  456.  The  further  suggestion  made  by  the  Supreme 
Court  in  6  Vroom,  501,  506,  and  10  Vroom,  434,  that  this  statute  could 
be  maintained  as  a  taking  of  private  propert}'  for  a  public  use,  was 
disapproved  by  the  Court  of  Errors  in  12  Vroora,  178. 

In  Kean  v.  Drir/r/s  Drainage  Co.,  IG  Vroom,  91,  cited  for  the  plain- 
tiffs in  error,  the  statute  that  was  held  unconstitutional  created  a  private 
corporation  with  power  to  drain  lands  without  the  consent  or  application 


Court 

■if  <lv^ 


CHAP,  v.]  WURTS   V.   HOAGLAND    ET   AL.  773 

of  any  of  the  owners ;  and  the  Supreme  Court  observed  that  in  the 
opinions  of  the  Court  of  Errors  in  the  present  case  and  in  Coster  v. 
Tide  Water  Co.,  the  distinction  was  clearly  drawn  between  meadow 
drainage  for  the  exclusive  benefit  of  the  owners,  to  be  done  at  their  sole 
expense,  and  drainage  undertaken  by  the  public  primarily  as  a  matter 
of  public  concern,  in  which  case  the  assessment  upon  land  owners  must 
be  limited  to  benefits  imparted.     16  Vroom,  94. 

This  review  of  the  cases  clearly  shows  that  general  laws  for  the 
drainage  of  large  tracts  of  swamps  and  low  lands,  upon  proceedings 
instituted  by  some  of  the  proi^rietors  of  the  lands  to  compel  all  to  con- 
tribute to  the  expense  of  their  drainage,  have  been  maintained  by  the 
courts  of  New  Jersey  (without  reference  to  the  power  of  taking  private 
property  for  the  public  use  under  the  right  of  eminent  domain,  or  to  the 
power  of  suppressing  a  nuisance  dangerous  to  the  public  health)  as  a 
just  and  constitutional  exercise  of  the  power  of  the  legislature  to  estab- 
lish regulations  by  which  adjoining  lands,  held  by  various  owners  in 
severalty,  and  in  the  im|)rovement  of  wliich  all  have  a  common  interest, 
but  which,  by  reason  of  the  peculiar  natural  condition  of  the  whole 
tract,  cannot  be  improved  or  enjoyed  by  any  of  them  without  the  con- 
currence of  all,  may  be  reclaimed  and  made  useful  to  all  at  their  joint 
expense.  (The  case  comes  within  the  principle  upon  which  this  court 
upheld  the  validity  of  general  mill  Acts  in  Head  v.  Amoskeag  Manu- 
facturing Co.,  113  U.  S.  9.^ 

It  is  also  well  settled  by  the  decisions  of  the  courts  of  New  Jersey 
that  such  proceedings  are  not  within  the  provision  of  the  Constitution 
of  that  State  securing  the  right  of  trial  by  jur}'.  New  Jerse}'  Consti- 
tution of  1776,  art.  22;  Constitution  of  1844,  art.  1,  sec.  7;  Scudder 
V.  Trent07i  Delaware  Falls  Co.,  Saxton,  694,  721-725;  In  re 
Lower  Chatham  Drainage,  7  Vroom,  442 ;  Howe  v.  Plainfield,  8 
Vroom,  145. 

The  statute  of  1871  is  applicable  to  any  tract  of  land  within  the  State 
which  is  subject  to  overflow  from  freshets,  or  which  is  usuallj'  in  low, 
marsh3^  boggy  or  wet  condition.  It  is  only  upon  the  application  of  at 
least  five  owners  of  separate  lots  of  land  included  in  the  tract,  that  a 
plan  of  drainage  can  be  adopted.  All  persons  interested  have  oppor- 
tunity by  public  notice  to  object  to  the  appointment  of  commissioners 
to  execute  that  plan,  and  no  commissioners  can  be  appointed  against 
the  remonstrance  of  the  owners  of  the  greater  part  of  the  lands.  All 
])ersons  interested  have  also  opportunity  by  public  notice  to  be  heard 
before  the  court  on  the  commissioners'  report  of  the  expense  of  the 
work,  and  of  the  lands  w^hich  in  their  judgment  ought  to  contribute  ;  as 
well  as  before  the  commissioners,  and,  on  any  error  in  law  or  in  the 
pr i nciples  of  assessment,  before  the  court,  upon  the  amount  of  the 
assessment. 

As  the  statute  is  ap))licable  to  all  lands  of  the  same  kind,  and  as 
no  person  can  be  assessed  under  it  for  the  expense  of  drainage  witho u t 
notice  and  opportunity  to  be  heard,  the  plaintiffs  in  error  have  neither 


774  •  YICK    wo    V.    HOPKINS.  [CIIAP.  V. 

been  denlod  the  equal  proleetion  of  the  laws,  nor  been  deprived  of  the i r 
property  wiUiuut  due  |)focess  of  law,  within  tlie  meaning  of  the  Fuu r- 
teenth  Amendment  of  the  Constitution  of  the  United  States.  Barhier 
V.  Connolly,  113  U.  S.  27,  31;  Walker  v.  fSauvinet,  92  U.  S.  90; 
Davidson  v.  New  Orleans,  96  U.  S.  97  ;  Ilayar  v.  Uedamation  Dis- 
trict, HI  U.  S.  701.  Judgment  affirmed. 


k  QAA/jui^vi^i.H. 


^Ui^UAJf  (^^    yjQg;  ^o   y^   HOPKINS.      wo   LEE  v.    HOPKINS. 

Pk<^    L(rc*.\^-(?ttM^  Supreme  Court  of  the  United  States.     188G. 

Vv.vvXV,l/  vCv    H^i-:-r(xc^.    l\.l\\,Xt^  [l is  6^.  5.  356.] 

!^W.  Ai^'.'-  These  two  cases  were  argued  as  one  and  depended  upon  precisely 
<H  lrM/4/l-  ^^^  same  state  of  facts  ;  the  first  coming  here  uijon  a  writ  of  error  to 
}  i  .  (-/  the  Supreme  Court  of  the  State  of  California,  the  second  on  appeal 
- '^^  from  the  Circuit  Court  of  the  United  States  for  that  district. 

\/\jMy^{Jr  A-^        The  plaintiff  in  error,  Yick  Wo,  on  August  2-4,  1885,  petitioned  the 

/  ,  -p  Supreme  Court  of  California  for  a  writ  of  habeas  corpus^  alleging  that 
ynoi  r  he  was  illegally  deprived  of  his  personal  liberty  by  the  defendant  as 
Ij^i/14/1AX*%1,      sheriff  of  the  city  and  county  of  Sau  Francisco. 

jJ-  The  sheriff  made  return  to  the  writ  that  he  held  the  petitioner  in  cus- 

/  ,  tody  by  virtue  of  a  sentence  of  the  Police  Judges  Court,  No.  2,  of  the 
'\yM\^yjM  ^jj.^.  ^^^^  county  of  Sau  Francisco,  whereby  he  was  found  guilty  of  a 
oJXx\sr<k  violation  of  certain  ordinances  of  the  board  of  supervisors  of  that 
i\jj^  !mm\  county,  and  adjudged  to  pay  a  fine  of  SlO,  and,  in  default  of  payment, 
j^Aj^jJo^  be  imprisoned  in  the  county  jail  at  the  rate  of  one  day  for  each  dollar 
ypo '  / '  of  fine  until  said  fine  should  be  satisfied,  and  a  commitment  in  conse- 
1  L^'^^'-jy  quence  of  non-payment  of  said  fine. 
(j^My^^\  /(vu/-^'      The  ordinances  for  the  violation  of  which  he  had  been  found  guilty 

J  /?  •    /    were  set  out  as  follows  :  — 
■iAAji).  '|j<^'^^"       Order  No.  1569,  passed  May  26,  1880,  prescribing  the  kind  of  build- 
cuM^'^l  ings  in  which  laundries  ma}^  be  located. 

^vdl^"^  "The  people  of  the  city  and  county  of  San  Francisco  do  ordain  as 

lvU<^k  follows : 

t  ,    ,  "Sec.  1.  It  shall  be  unlawful,  from  and  after  the  passage  of  this 

XU/inU/l  order,  for  any  person  or  persons  to  establish,  maintain,  or  carry  on  a 

ej-i-  «-  laumiQ'  within  the  corporate  limits  of  the  cit}'  and  county  of  San  Fran- 

j^^^vvvAAA  Cisco  without  having  first  obtained  jthe  consent  of_the  board  of  super- 
I      G    J  visors,  excei)t  the  same  be  located  in  a  building  constructed  either  of 

brick  or  stone. 
Lif  kiXM-  'i  Sec.  2.  It  shall  be  unlawful  for  an}'  person  to  erect,  build,  or  main- 

(if^iuj{  u/^      tain,  or  cause  to  be  erected,  built,  or  maintained,  over  or  upon  the  roof 

(j  0  ,  of  any  building  now  erected  or  which  may  hereafter  be  erected  within 
(.  Ji^^UMA^t  the  limits  of  said  cit}'  and  county,  any  scaffolding,  without  first  obtain- 
^^^^,iAA  AAA  ing  the  written  permission  of  the  board  of  supervisors,  which  permit 
."^     (V^f^  /wfvij   JImXA    XU'LfcU.^ita    in^^^^^di^  "^xL  \xj aj\.(Ui<ri   o.^-^    'tW 


/ 


CHAP,  v.]  ^  YICK   WO   V.    HOPKINS.  775  A      1      (OX 

shall  state  fully  for  what  purpose  said  scaffolding  is  to  be  erected  and  ju(/''i^  "^^ 
used,  and  such  scaffolding  shall  not  be  used  for  anj'  other  purpose  than    ^^^  ^^tc  '^*-"' 


that  designated  in  such  permit.  / 

"  Sec.  3.  Any  person  who  shall  violate  an}-  of  the  provisions  of  this   AAA^^^^^  ^ 


order  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction     ^jj_^)(>>.x.(X»-^ 
thereof  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dol-    ^      jj        . 
lars,  or  by  imprisonment  in  the  county  jail  not  more  than  six  months,    ^'^  /h^^^ 
"or  by  both  such  fine  and  imprisonment."  (x  A /\nAXA.KK,i 

Order  No.  1587,  passed  July  28,  1880,  the  following  section  : 
"  Sec.  68.  It  shall  be  unlawful,  from  and  after  the  passage  of  this  Sl/U/V\   A^^'tt 
order,  for  any  person  or  persons  to  establish,  maintain,  or  carry  on  a      -^^    c^iCli 
laundry  witliin  the  corporate  limits  of  the  city  and  county  of  San  Fran-        ^w.    /f^ 
Cisco  without  having  first  obtained  the  consent  of  the  board  of  super-  /M/VtA<-  t^X/ 
visors,  except  the  same  be  located  in  a  building  constructed  either  of  Q^-ri{^  •  ^^^^^ 
brick  or  stone."  r  Cf 

The  following  facts  were  also  admitted  on  the  record  :  That  petitioner  -^'^*^^  ^ 
is  a  native  of  China  and  came  to  California  in  1861,  and  is  still  a  subject    OA    /J^  _    c^ 
of  the  Emperor  of  China  ;  that  he  has  been  engaged  in  the  laundr}'  busi-  .    .    ^  ^ 

ness  in  the  same  premises  and  building  for  twent3--two  years  last  past ;  '■/-/' 

that  he  had  a  license  from  the  board  of  fire  w-ardens,  dated  March  3,     ^'^^'     ^ 
1884,  from  which  it  appeared  "  that  the  above  described  premises  have  j-jj^  ^ajjiiU. 
been  inspected  by  the  board  of  fire  wardens,  and  upon  such  inspection   j      a,^ j^\ 
said  board  found  all  proper  arrangements  for  carrying  on  the  business ;  Ay'lynJ^cM^ 
that  the  stoves,  washing  and  drying  apparatus,  and  the  appliances  for ///     A^v^ 
heating  smoothing  irons  are  in  good  condition,  and  that  their  use  is  not  ^ 
dangerous  to  the  surrounding  property  from  fire,  and  that  all  proper  om/  yiM  Vv 
precautions  have  been  taken  to  comply  with  the  provisions  of  order       /  \^  ,J  -k 
No.  1617,  defining  '  the  fire  limits  of  the  city  and  county  of  San  Fran- "  I) 

Cisco  and  making  regulations  concerning  the  erection  and  use  of  build-  /  i-j  '3  (M*^^ 
ings  in  said  city  and  count}','  and  of  order  No.  1670,  '  prohibiting  the        jm/I^ 
kindling,  maintenance,  and  use  of  open  fires  in  houses; '  that  he  had  a  ~' 
certificate  from  the  health  officer  that  the  same  premises  had  been  in-  "^^Z     O  . 
spected  b}'  him,  and  that  he  found  that  the}'  were  properly  and  suffi-     ^  <Sl^ 
ciently  drained,  and  that  all  proper  arrangements  for  carrying  on  the    ^  rytajh^  ' 
business  of  a  laundry,  without  injury  to  the  sanitary  condition  of  the      -a  j 

neighborhood,  had  been  complied  with;  that  the  city  license  of  the  pe-  '^^'^   Otti'i 
titioner  was  in  force  and  expired  October  1st,  1885  ;  and  that  the  peti-  -Ou.\JtiL  dj. 
tioner  applied  to  the  board  of  supervisors,  June  1st,  1885,  for  consent      .        •     , 
of  said  board  to  maintain  and  carry  on  his  laundry,  but  that  said  board,  '/  » 

on  July  1st,  1885,  refused  said  consent."  It  is  also  admitted  to  be  fj.  L/A^Ht-^ 
true,  as  alleged  in  the  petition,  that,  on  February  24,  1880,  "  there  were  yi  'A.  ^4^\ 
about  320  laundries  in  the  city  and  county  of  San  Francisco,  of  which  ^  f  f 
about  240  were  owned  and  conducted  by  subjects  of  China,  and  of  the  9/ff  «_// 
■whole  number,  viz.^  320,  about  310  were  constructed  of  w'ood,  the  same  '"^^'^^ 
material  that  constitutes  nine-tenths  of  the  houses  in  the  city  of  San  -Cti^AJk^^i'^ 
I'rancisco.  The  capital  thus  invested  by  the  subjects  of  China  was  not  Jf  jt-  hi 
less  than  two  hundred  thousand  dollars,  and  they  paid  annually  for  rent,   ~^'^^^ 


776  YICK   wo   r.    HOPKINS.  [CHAP.  V. 


t 


ct- 


*VW-^   t^ 


►-        license,  taxes,  gas,  and  water  about  one  hundred  and  eighty  thousand 

dollars. 

AAAMAVly  It  was  alleged  in  the  petition,  tliat  "  3-our  petitioner  and  more  than 

J  one  hundred  and  tlfty  of  his  countrymen  have  been  arrested  upon  the 

charge  of  carrvini!;  on  business  without  having  such  special  consent. 

(XJ^^J^^  Vl^   while  those  who  arc   not  subjects  of  China,  and  who  are  conducting 

eighty  odd  laundries  under  siniihir  conditions,  are  left  unmolested  and 

ivi"t7vu.<.  -    free  to  onioy  the  enhanced  trade  and  prolits  arising  from  this  hurtful' 

,  j|^    and  unfair  discrimination.     The  business  of   your   petiticmer.   and  of 

*^      V  those  of  his  countrvmcn  similarly  situated,  is  o-i-eatly  impninMl,  and  in 

uti    C^  •      many  cases  i)ractically  ruined  by  this  system  of  oppression  to  one  kind 

of  men  and  favoritism  to  all  others." 

The  statement  therein  contained  as  to  the  arrest,  &c.,  was  admitted 


I  U^  to  be  true,  with  the  qualification  only,  that  tiie  eiojity  odd  Innndries  re- 

^^^  ferred  to  are  in  wooden  buildings  without  scaffolds  on  the  roofs. 
A.  ry^cJU,      It  was  also  admitted  "that  petitioner  and  200  of  his  countrymen 
similarly  situated  petitioned  the  board  of  supervisors  for  permission  to 
i-^A^  AA^'"    continue  their  business  in  the  various  houses  which  they  had  been  occu- 
fi\A^ji^  ttc    Pyi"g  ^"^^  using  for  laundries  for  more  than  twenty  years,  and  such  peti- 
^^  tions  were  denied,  and  all  the  petitions  of  those  wlio  were  not  Chinese, 

(a.A(1/Cv\^       with  one  exception  of  Mrs.  Mary  Meagles,  were  granted." 
(I  B^-  section  2  of  article  XI.  of  the  Constitution  of  California  it  is  pro- 

C/vCDUi«t^'vided  that  "  any  county,  city,  town,  or  township  may  make  and  enforce 
^  within  its  limits  all  such  local,  police,  sanitary,  and  other  regulations 

L^j^Oiff^^r       as  are  not  in  conflict  with  general  laws." 

.  By  section  74  of  the  Act  of  April  19,  1856,  usually  known  as  the 

r^(XAL       Consolidation  Act,  the  board  of  supervisors  is  empowered,  among  other 
■    C/l-vA  -        things,  "to  provide  by  regulation  for  the  prevention  and  summary  re- 
moval of  nuisances  to  public  health,  the  prevention  of  contagious  dis- 
VU-C/CmM       eases  ;  ...  to  prohibit  the  erection  of  wooden  buildings  within  any 
1     fixed  limits  where  the  streets  shall  have  been  established  and  graded ; 
\^t^  IaWV    .   .  ,  to  regulate  the  sale,  storage,  and  use  of  gunpowder  or  other  ex- 
plosive or  combustible  materials  and  substances,  and  make  all  needful 
regulations  for  protection  against  fire ;  to  make  such  regulations  con- 
'     rf  /Ofe.       cerning  the  erection  and  use  of  buildings  as  may  be  necessarj'  for  the 

y  ,       f     safety  of  the  inhabitants." 

\X/i.dM^^^*^^^     The  Supreme  Court   of  California,  in  the  opinion  pronouncing  the 

'  judgment  in  this  case,  said  :  .   .    .   "  The  order  No.  15G9  and  section  68 

of  order  No.  1587  are  not  in  contravention  of  common  right  or  unjust, 

unequal,  partial,  or  oppressive,  in  such  sense  as  authorizes  us  in  this 

J,  f_<^//      proceeding  to  pronounce  them  invalid." 

^    ^^  After  answering  the  position  taken  in  behalf  of  the  petitioner,  that 

k  CV^^CCU'     the  ordinances  in  question  had  been  repealed,  the  court  added:   "We 

have  not  deemed  it  necessary  to  discuss  the  question  in  the  light  of 

''JtL    /OUa.-   supposed  infringement  of  petitioner's  rights  under  the  Constitution  of 

•4-U-^         the  United  States,  for  the  reason  that  we  think  the  principles  upon  which 

'^'^■''^'^^  '      contention  on  that  head  can  be  based  have  in  effect  been  set  at  rest  by 


lU.^. 


CA  'io 


CHAP,  v.]  YICK   WO   V.   HOPKINS.  777 .         ^ 

the  cases  of  Barhier  v.  Connolly,  113  U.  S.  27,  aud   aSoo?*  ZTt^?^  v.  ^^f. -jL    ^^  j^ 

Cruicley,  113  U.  S.  7U3."     The  writ  was  accordiugly  discharged  aud  *^^ 

the  prisoner  retuauded.  —f:M/VU,x^tC^ 

In  the  other  case  the  appellant,  Wo  Lee,  petitioned  for  his  discharge  . 

from  an  alleged  illegal  iniprisoniuent,  upon  a  state  of  facts  shown  upon  ''T-^'^-^^'^-t^ 

the  record,  precisel}"  similar  to  that  in  the  case  of  Yick  Wo.     In  dis-  ^^A^  aJtXjir^ 

posing  of  the  application,  the  learned  Circuit  Judge,  Sawyer,  in  his  qji      -f— 

opinion,  26  Fed.  Eep.  471,  after  quoting  the  ordinance  in  question,  pro-  diStMx/^'i^ 

ceeded  at  length  as  follows  :   .   .   .   [Here  follows  a  strong  statement  of  ,  i^ 

the  judge's  personal  opinion  that  this  ordinance  violates  the  Constitution  ^^^-^^^J^     ^ 

and  treaties  of  the  United  States.]  ^^  '7/-  ''^  • 

But,  in  deference  to  the  decision  of  the  Supreme  Court  of  California  /^     k     {'i 

in  the  case  of  Yick  Wo,  and  contrary  to  his  own  opinion  as  thus  ex-  i^^^^jp' 

pressed,    the    circuit  judge    discharged    the    writ   and    remanded   the  ak/OU  OjC 

prisoner.  i  n  -ff - 

Mr.  Hall  JIcAllister,  Mr.  L.  II.  Van  Schaick,  and  Mr.  D.  L.  Smoot,  XM/pf  t^* 

for  plaintiffs  in  error.  —a 

Mr.  Alfred  Clarke  and  Mr.  II.  G.  Sieberst,  for  defendant  in  error.  ^^^^fvM^^ 

Mr.  Justice  Matthews  delivered  the  opinion  of  the  court.  -"tWu   (^ ' 

In  the  case  of  the  petitioner,  brought  here  b}'  writ  of  error  to  the  y        y~    / 

Supreme  Court  of  California,  our  jurisdiction  is  limited  to  the  question,  V^'^/^    ^ 

whether  the  ulaintift'  in  error  has  been  denied  a  right  in  violation  of  the  v/       'ff 

Constitution,   laws,   or  treaties  of  the  United  States.     The  question  ^  '-^ 

whether  his  imprisonment  is  illegal,  under  the  Constitution  and  laws  of  ^^^i,^  Ji  'c\aX 

the  State,  is  not  open  to  us.     And  although  that  question  might  have  n       . 

been  considered  in  the  Circuit  Court  in  the  application  made  to  it,  and  J^  a4u«^ 

by  this  court  on  appeal  from  its  order,  yet  judicial  propriet}'  is  best  con-  -+     (^^mmjuJl 

suited  by  accepting  the  judgment  of  the  State  court  upon  the  points  ^               a 

involved  in  that  inquiry.  \MX  XM'Vt^ 

That,  however,  does  not  preclude  this  court  from  putting  npon  the  -/    '     ^o(z( 

ordinances  of  the  supervisors  of  the  count}'  and  city  of  San  Francisco  .      /?  ' 

an  independent  construction;    for  J,he  determination  of  the  question  (HrTiM.'^'^^ 

whether  the  proceedings  under  these  ordinances  and  in  enforcement  of  ^       ^ 

them  are  in  conflict  with  the  Constitution  and  laws  of  the  UniteiirStates,  i{M^^  ^^ 

necessarily  involves  the  meaning  of  the  ordinances,  which,  for  that  pur-  /i-f-jU  ^^' 

pose,  we  are  required  to  ascertain  and  adjudge.  ^                    p 

OO         We  are  consequently  constrained,  at  the  outset,  to  differ  from  the  p>  oy^  ^ 

~"~    Supreme  Court  of  California  upon  the  real  meaning  of  the  ordinances  y       ^  / 

in  question.     That  court  considered  these  ordinances  as  vesting  in  the  (^T■^^ 

board  of  supervisors  a  not  unusual  discretion  in  granting  or  withholding  ^  7^  /O^ 

their  assent  to  the  use  of  wooden  buildings  as  laundries,  to  be  exercised  / 

in  reference  to  the  circumstances  of  each  case,  with  a  view  to  the  i^ro-  A/^    ]/xfJ-^ 

tection  of  the  public  against  the  dangers  of  fire.     We  are  not  able  to  i/      /i  ^    /\ 

concur  in  that  interpretation  of  the  power  conferred  upon  the  super-  ^^^   ■ 

visors.     There  is  nothing  in  the  ordinances  which  points  to  such  a  regu-  /\iJL .  C^. 

lation  of  the  business  of  keeping  and  conducting  laundries.     They  seem  [ 

intended  to  confer,  and  actually  do  confer,  not  a  discretion  to  be  exer-  IaaJ^ 

tkx.   <i4\v<t^ctiAU  ^o^/viM  {rUt€k  Wo  v//<yf-}  ^^^^ 


778  YICK   wo   t'.    HOPKINS.  [CII.VP.  V. 

tr   V^  cised  upon  a  consideration  of  the  circumstances  of  each  case,  but  a 

J  naked  and  arbitrary  power  to  give  or  withhold  consent,  not  only  as  to 

-  places,  but  as  to  persons.  vSo  that,  if  an  ap|)licant  for  such  consent, 

/  nr^  l^eing  in  every  way  a  competent  and  qualified  person,  and  having  com- 

h  plied  with  every  reasonable  condition  demanded  by  any  public  interest, 

'  XmX  (?^^ 'should,  failing  to  obtain  the  requisite  consent  of  the  supervisors  to  the 

/  •  ' /)  ])rosecution  of  Uis  business,  ai)i)lv  for  redress  by  the  judicial  process  of 

^'^•'^    '^  maiidumus,  to  require  the  supervisors  to  consider  and  act  upon  his  case, 

/^  fuM.  it  would  be  a  sutticient  answer  fur  them  to  sav  that  the  law  had  con- 

^  '-^         '  ferred  upon  them  authority  to  withhold  their  assent,  without  reason  and 

'      Pio/ziy-  ''^'ithout  rcs]jonsibility.  ^The  power  given  to  them  is  not  confided  to 

/J  their  discretion  in  the  legal  sense  of  that  term,  but  is  granted  to  their 

JXcAjL  mere  will.     It  is  purely  arbitrary,  and  acknowdedges  neither  guidance 

A    ^  nor  restrainfT  "  • 

AA^-^^ '^^  ilns  erroneous  view  of  the  ordinances  in  question  led  the  Supreme 

J     '^U  Court  of  California  into  the  further  error  of  holding  that  they  were  jus- 

^         /I  titled  by  the  decisions  of  this  court  in  the  cases  of  Barhier  v.  Connolly, 

^lUy^'LX  j^g  ^  g^  2-^  ^^^^  g^^^^  jj-.^^^  ^^  Croioley,  113  U.  S.  703.  .   .  . 

^\iM4hMMM.  The  ordinance  draw^n  in  question  in  the  present  case  is  of  a  verj'  dif- 
D  ,  ferent  character.  It  does  not  prescribe  a  rule  and  conditions  for  the 
^Ttu.  Ck/^ ,  regulation  of  the  use  of  property  for  laundry  purposes,  to  which  all 
yiQ  /O  ~l  similarly  situated  may  conform.  It  allows  without  restriction  the  use 
'  *■  •  '^  for  such  purposes  of  buildings  of  brick  or  stone  ;  but,  as  to  wooden 
buildings,  constituting  nearly  all  those  in  previous  use,  it  divides  the 
owners  or  occupiers  into  two  classes,  not  having  respect  to  their  per- 
sonal character  and  qualifications  for  the  business,  nor  the  situation  and 
nature  and  adaptation  of  the  buildings  themselves,  but  merely  by  an 
arbitrary  line,  on  one  side  of  which  are  those  who  are  permitted  to  pur- 
sue their  industry  by  the  mere  will  and  consent  of  the  supervisors,  and 
on  the  other  those  from  whom  that  consent  is  withheld,  at  their  mere 
will  and  pleasure.  And  both  classes  are  alike  only  in  this,  that  they 
are  tenants  at  will,  under  the  supervisors,  of  their  means  of  living.  The 
ordinance,  therefore,  also  differs  from  the  not  unusual  case,  where  dis- 
cretion is  lodged  by  law  in  public  officers  or  bodies  to  grant  or  withhold 
licenses  to  keep  taverns,  or  places  for  the  sale  of  spirituous  liquors,  and 
the  like,  when  one  of  the  conditions  is  that  the  applicant  shall  be  a  fit 
person  for  the  exercise  of  the  privilege,  because  in  such  cases  the  fact 
of  fitness  is  submitted  to  the  judgment  of  the  officer,  and  calls  for  the 
exercise  of  a  discretion  of  a  judicial  nature. 

The  rights  of  the  petitioners,  as  affected  by  the  proceedings  of  which 
they  complain,  are  not  less,  because  they  are  aliens  and  sulijccts  of  the 
Emperor  of  China.  By  the  third  article  of  the  treaty  between  this  Gov- 
ernment and  that  of  China,  concluded  November  17,  1880,  22  Stat.  827, 
it  is  stipulated:  "  If  Chinese  laborers,  or  Chinese  of  an}- other  class, 
now  either  permanentl}-  or  temporarily  residing  in  the  territory  of  the 
United  States,  meet  with  ill  treatment  at  the  hands  of  any  other  persons, 
the  Government  of  the  United  States  will  exert  all  its  powers  to  devise 


CHAP,  v.]  YICK   WO   V.   HOPKINS.  779 

measures  for  their  protection,  and  to  secure  to  them  the  same  rights, 
privileges,  immunities,  and  exemptions  as  may  be  enjoj'ed  by  the  citi- 
zens or  subjects  of  the  most  favored  nation,  and  to  wliicii  they  are  enti- 
tled by  treaty."   .   .   .   [For  the  passage  here  omitted  see  ante,  p.  532.] 

It  is  contended  on  the  part  of  the  petitioners,  that  the  ordinances  for 
violations  of  which  they  are  severally  sentenced  to  imprisonment,  are 
void  on  their  face,  as  being  within  the  prohibitions  of  the  Fourteenth 
Amendment;  and,  in  the  alternative,  if  not  so,  that  they  are  void  by 
reason  of  their  administration,  operating  unequally,  so  as  to  punish  in 
the  present  petitioners  what  is  permitted  to  others  as  lawful,  without  any 
distinction  of  circumstances  —  an  unjust  and  illegal  discrimination,  it  is 
claimed,  which,  though  not  made  expressly  by  the  ordinances,  is  made 
possible  b}'  them. 

When  we  consider  the  nature  and  the  theory  of  our  institutions  of 
government,  the  principles  upon  which  they  are  supposed  to  rest,  and 
review  the  history  of  their  development,  we  are  constrained  to  conclude 
that  they  do  not  mean  to  leave  room  for  the  play  and  action  of  purely 
personal  and  arbitrary  power.  Sovereignty  itself  is,  of  course,  not  sub- 
ject to  law,  for  it  is  the  author  and  source  of  law ;  but  in  our  system, 
while  sovereign  powers  are  delegated  to  the  agencies  of  government, 
sovereignty-  itself  remains  with  the  people,  by  whom  and  for  whom  all 
government  exists  and  acts.  And  the  law  is  the  definition  and  limita- 
tion of  power.  It  is,  indeed,  quite  true,  that  there  must  always  be 
lodged  somewhere,  and  in  some  person  or  body,  the  authority  of  final 
decision  ;  and  in  many  cases  of  mere  administration  the  responsibility 
is  purely  political,  no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of  opinion  or  b}^  means 
of  the  suffrage.  But  the  fundamental  rights  to  life,  liberty,  and  the 
pursuit  of  happiness,  considered  as  individual  possessions,  are  secured 
by  those  maxims  of  constitutional  law  which  are  the  monuments  show- 
ing the  victorious  progress  of  the  race  in  securing  to  men  the  blessings 
of  civilization  under  the  reign  of  just  and  equal  laws,  so  that,  in  the 
famous  language  of  the  Massachusetts  Bill  of  Rights,  the  government 
of  the  Commonwealth  ^^  may  be  a  government  of  laws  and  not  of  men." 
For,  the  very  idea  that  one  man  may  be  compelled  to  hold  his  life,  or 
the  means  of  living,  or  any  material  right  essential  to  the  enjo3"ment  of 
life,  at  the  mere  will  of  another,  seems  to  be  intolerable  in  any  country 
where  freedom  prevails,  as  being  the  essence  of  slavery  itself. 

There  are  many  illustrations  that  might  be  given  of  this  truth,  which 
would  make  manifest  that  it  was  self-evident  in  the  light  of  our  system 
of  jurisprudence.  The  case  of  the  political  franchise  of  voting  is  one. 
Though  not  regarded  strictly  as  a  natural  right,  but  as  a  privilege 
mereh'  conceded  b}'  societ}'  according  to  its  will,  under  certain  condi- 
tions, nevertheless  it  is  regarded  as  a  fundamental  political  right,  because 
preservative  of  all  rights. 

In  reference  to  that  right,  it  was  declared  by  the  Supreme  Judicial 
Court  of  Massachusetts,  in  Capen  v.  Foster^  12  Pick.  485,  489,  in 


780  YICK    wo    V.    HOPKINS.  [CIIAP.  V. 

the  words  of  Chief  Justice  Shaw,  "  that  iu  all  eases  where  the  Constitu- 
tion has  conferred  a  political  right  or  privilege,  and  where  the  Constitu- 
tion has  not  particularly  designated  the  manner  in  which  that  right  is  to 
be  exercised,  it  is  clearly  within  the  just  and  constitutional  limits  of  the 
legislative  power,  to  adopt  an}'  reasonable  and  uniform  regulations,  in 
regard  to  the  time  and  motle  of  exercising  that  right,  which  are  designed 
to  secure  and  facilitate  the  exercise  of  such  right,  in  a  prompt,  orderh', 
and  convenient  manner;"  nevertheless,  "such  a  construction  would 
afford  no  warrant  for  such  an  exercise  of  legislative  power,  as,  under 
the  pretence  and  color  of  regulating,  should  subvert  or  injuriously  re- 
strain the  right  itself."  It  has  accordingly  been  held  generally  in  the 
States,  that,  whether  the  particular  provisions  of  an  Act  of  legislation, 
establishing  means  for  ascertaining  the  qualifications  of  those  entitled 
to  vote,  and  making  previous  registration  in  lists  of  such,  a  condition 
precedent  to  the  exercise  of  the  right,  were  or  were  not  reasonable  regu- 
lations, and  accordingl}-  valid  or  void,  was  always  open  to  inquiry,  as  a 
judicial  question.  See  Daggett  v.  Hudson,  1  Western  Reporter,  789, 
decided  by  the  Supreme  Court  of  Ohio,  where  many  of  the  cases  are 
collected  ;  3Io7iroe  v.  Collins,  17  Ohio  St.  665. 

The  same  principle  has  been  more  freely  extended  to  the  quasi-legis- 
lative acts  of  inferior  municipal  bodies,  in  respect  to  which  it  is  an 
ancient  jurisdiction  of  judicial  tribunals  to  pronounce  upon  the  reason- 
ableness and  consequent  validit}'  of  their  by-laws.  In  respect  to  these, 
it  was  the  doctrine,  that  every  by-law  must  be  reasonable,  not  incon- 
sistent with  the  charter  of  the  corporation,  nor  with  any  statute  of  Par- 
liament, nor  with  the  general  principles  of  the  common  law  of  the  land, 
particularly  those  having  relation  to  the  libertj-  of  the  subject  or  the 
rights  of  private  propertj-.  Dillon  on  Municipal  Corporations,  3d  ed., 
§  319,  and  cases  cited  in  notes.  Accordingly,  in  the  case  of  The  State 
of  Ohio  ex  rel.  &c.  v.  The  Cincinnati  Gas-Light  and  Coke  Company, 
18  Ohio  St.  262,  300,  an  ordinance  of  the  city  council  purporting  to  fix 
the  price  to  be  charged  for  gas,  under  an  authority  of  law  giving  discre- 
tionary power  to  do  so,  was  held  to  be  bad,  if  passed  in  bad  faith,  fixing 
an  unreasonable  price,  for  the  fraudulent  purpose  of  compelling  the  gas 
company  to  submit  to  an  unfair  appraisement  of  their  works.  And  a 
similar  question,  ver}'  pertinent  to  the  one  in  the  present  cases,  was 
decided  by  the  Court  of  Appeals  of  Maryland,  in  the  case  of  the  City  of 
Baltimore  v.  Radecke,  49  Maryland,  217.  .  .  .  [Here  follows  a  state- 
ment of  this  case.     The  case  itself  is  found  infra,  p.  864.] 

This  conclusion,  and  the  reasoning  on  which  it  is  based,  are  deduc- 
tions from  the  face  of  the  ordinance,  as  to  its  necessary  tendency  and 
\iltimate  actual  operation.  In  the  present  cases  we  are  not  obli<>:ed  to 
reason  from  the  probable  to  the  actual,  and  pass  upon  the  validity  of 
the  ordinances  complained  of,  as  tried  merely  by  the  opi^ortunities 
which  their  terms  afford,  of  unequal  and  unjust  discrimination  in  their 
administration.  For  the  cases  present  the  ordinances  in  actual  opera- 
tion, and  the  facts  shown  establish  an  administration  directed  so  exclu- 


CKAP.  v.]  YICK   WO   V.   HOPKINS.  781 

sively  against  a  particular  class  of  persons  as  to  warrant  and  require 
the  conclusion,  that,  wliatcvcr^  may  have  been  the  intent  of  the  onljr 
nances  as  adopted,  they  are  applied  by  the  public  autliorities  charged 
•U'ith  tlieir  administration,  and  thus  representing  the  Slate  itself,  ^vtTt^a 
mind  so  unequal  and  oi^pressive  as  to  amount  to  a  practical  denial  by 
the  State  of  that  e(|ual  in-otection  of  the  laws  which  is  secured  to~the 
petitioners,  as  to  all  other  persons,  by  the  broad  and  benign  provisTo"ns 
of  the  -fourteenth  xVmendment  to  the  Constitution  of  tlie  United  States. 
Tliough  the  law  itself  be  fair  on  its  face  and  impartial  in  appearance, 
yct^^ifit  is  applied  and  achninistcrcd  by  public  authority  with  an  evil 
eve  and  an  anegual  liand,  so  ns  jiractically  to  make  unjust  and  illegal 
discriminations  between  t)ersons   in  similar  circumstances,  material  to 


their  rights,  the  denial  of  equal  justice  is  still  within  the  prohibition  of 


the  Constitution.     This  principle  of  interpretation  has  been  sanctioned 


by  this  court  in  Henderson  v.  Mayor  of  JVeio  York,  92  U.  S.  259  ;  Chy 
Lung  V.  Freeman,  92  U.  S.  275  ;  Ex  parte  Virginia,  100  U.  S.  339  ; 
Neal  \.  Belaioare,  103  U.  S.  370;  and  Soon  Hlng  \.  Croioley,  113 
U.  S.  703. 

The  present  cases,  as  shown  by  the  facts  disclosed  in  the  record,  are 
within  this  class.  It  appears  that  both  petitioners  have  complied  with 
every  requisite,  deemed  by  the  law  or  by  the  public  officers  charged  with 
its  administration,  necessary  for  the  protection  of  neighboring  property 
from  fire,  or  as  a  precaution  against  injury  to  the  public  health.  No 
reason  whatever,  except  the  will  of  the  supervisors,  is  assigned  why  thev 
should  not  be  permitted  to  carry  on,  in  the  accustomed  manner,  their  ^ 

harmless  and  useful  occupation,  on  which  they  depend  for  a  livelihood.   ^"l/Vl^   O'Oli 
And  while  this  consent  of  the  supervisors  is  withheld  from  them  and  from  __^    /»      (JT^aX 
two  hundred  others  who  have  also  petitioned,  all  of  whom  happen  to  be  a"^         [ 
Chinese  subjects,  eighty  others,  not  Chinese  subjects,  are  permitted  to  -/L-r«4  j 
carry  on  the  same  business  under  similar  conditions.     The  fact  of  this  f 

discrimination  is  admitted.     No  reason  for  it  is  shown,  and  the  conclu- 
sion cannot  be  resisted,  that  no  reason  for  it  exists  except  hostility  to  ^^ 
the  race  and  nationality  to  which  the  petitioners  belong,  and  which  in 
the  eye  of  the  law  is  not  justified.     The  discrimination  is,  therefore, 
illegal,  and  the  public  administration  which  enforces  it  is  a  denial  of  the  "tt^M   H  ^^ 
equal  protection  of  the  laws  and  a  violation  of  the  Fourteenth  Amend-    ^  ^    _ 


OAAJ-  Ay\. 


ment  of  the   Constitution.     The  imprisonment  of  the  petitioners  is,  _          /, 

therefore,  illegal,  and  they  must  be  discharged.     To  this  end,  (iii4AA.<Ji  <^^ 

The  judgment  of  the  Suj)reme  Court  of  California  in  the  case  of  Yick  ^^^^  Jyi/O  ■ 

Wo,  and  that  of  the  Circuit  Court  of  the  United  States  for  the  jj        f  Jj  J 

District  of  California  in  the  case  of  Wo  Lee,  are  severally  reversed,  .tx-t^^  *l  ^ 

and  the  cases  remanded,  each  to  the  proper  court,  with  directions  Q ^^^^    ^ 
to  discharge  the  petitioners  from  custody  and  imprisonment.^ 

1  See  Ho  Ah  Kow  v.  Numn,  5  Sawyer  U.  S.  C.  C.  552  (1879) ;  Parrott's  Case,  6  lb. 
349  (1880) ;  In  re  Ah  Chong,  6  lb.  451  ;  Ex  parte  Sing  Lee,  96  Cal.  354  (1892).  — Ed. 


JIj^\AJ^. 


MUGLER   V.   KANSAS.  [CHAP.  V. 


MUGLER  V.   KANSAS. 
Supreme  Court  of  the  United  States,  1887. 

[123  U.  S.  623.] 

[Two  cases,  entitled  as  above,  on  error  to  the  Supreme  Court  of 
Kansas,  and  another  case,  Kansas  v.  Ziebold,  on  appeal  from  the 
Circuit  Court  of  the  United  States  for  the  District  of  Kansas,  are 
here   grouped   together.] 

The  Constitution  of  the  State  of  Kansas  contains  the  following 
article,  being  art.  15  of  §  10,  which  was  adopted  In*  the  people 
November   2,    1880: 

"The  manufacture  and  sale  of  intoxicating  liquors  shall  be  forever 
U^-C/lij  \Aw-       prohibited  in  this  State,  except  for  medical,  scientific,  and  mechanical 
',!/  U  purposes." 

^  The  Legislature  of  Kansas  enacted  a  statute  to  carry  this  into  effect, 

4  >    t^u.  the  provisions  of  which  are  set  forth  b}-  the  court  in  its  opinion  in  this 

lf-yit'\-o^       case,  to  which  reference  is  made.     This  statute  [approved  Feb.   19, 
(\  ^       1881]  took  effect  on  the  1st  of  May,  1881. 

/^^fjictXikui/ri      The  plaintiff  in  error,  Mugler,  the  proprietor  of  a  brewer}'  in  Saline, 
/     f      Count}',  Kansas,  was  indicted  in  the  District  Court  in  that  count}'  in 
Cncyf"-  'q      November,  1881,  for  offences  against  this  statute. 

iiiu^'^  '^^^  ^^'^^  indictment  against  him  contained  five  counts  charging  that 
he,  on  five  different  specified  days  in  November,  1881,  in  the  county  of 
,_  ^^x^ilt  n-^  Saline,  "unlawfully  did  sell,  barter,  and  give  away  spirituous,  malt, 
~(~  '  ■  JuAxi  '^'^"oiis,  fermented,  and  other  intoxicating  hquors,"  he  "  not  having  a 
i,'\(-yt*zA^^^^j  permit  to  sell  intoxicating  liquors,  as  provided  by  law,  contrary  to  the 
UaMA  C^QMit  statutes,"  &c.  ;  and  a  sixth  count  charging  that  in  Saline  County,  at 
^  /      >       a  time  named  in  that  month,  he  "  did  unlawfully  keep  and  maintain  a 

^^^"^^  certain  common  nuisance,  to  wit:  "  his  brewery,  then  and  there  "  kept 

.^^^^JilLUy  i^*-   anfl  used  for  the  illegal  selling,  bartering,  and  giving  away,  and  illegal 
iJtL(kM,'j^d.      keeping  for  sale,  barter,  and  use  of  intoxicating  liquors,  in  violation  of 

^  the  provisions  of  an  Act,"  &c. 

L/VjOA^^,  The  parties  made  an  agreed  statement  of  facts,  which  was  all  the 

''iJjCdiA-  "Wii    evidence  introduced  in  the  case,  and  which  was  as  follows : 

/  /  "  It  is  hereby  stipulated  and  agreed  that  the  facts  in  the  above- 
it^JOdA  ^^i^^'  entitled  case  are,  and  that  the  evidence  would  prove  them  to  be,  as 
a  ~\JLk  Ww^'follows : 

/       '7  y  "  That   the   defendant,  Peter   Mugler,  has   been  a  resident  of  the 

^^^^^    \^  State  of  Kansas  continually  since  the  year  1872  ;  that,  being  foreign 

LaajUA'^  ^^^  born,  he  in  tliat  year  declared  his  intention  to  become  a  citizen  of  the 
^ .  ,         United  States,  and  always  since  that  time  intending  to  become  such 

n/\i^'^  ^        citizen,  he  did,  in  the  month  of  June,  1881,  by  the  judgment  of  the 
^utxA-  1  ti«'^^    District  Court  of  "Wyandotte  County,  Kansas,  become  a  full  citizen  of 
,^j^_^\^  jU^uA^^  the  United   States,   and  since  that   time  has  been  a  citizen   of  the 
X         United  States  and  of  the  State  of  Kansas. 

'C<A    CUf'U^ 


hA^^I 


CHAP,  v.]  MUGLER   V.    KANSAS.  783        *^^ 

"That  in  the   year   1877  said  defendant  erected   and  furnished   a  i... 

brewery  on  lots  Nos.  152   and   154  on  Tiiird  Street,   in  the  cit}'  of 
Salina,  Saline  County,  Kansas,  for  use  in  the  manufacture  of  a  malt    jR'^*-CX«i>i^ 
liquor  commonly  known  as  beer ;  that  such  building  was  specially  con-    ,^cmjo 
structed  and  adapted   for  the  manufacture  of  such  malt  liquor,  at  an    .-. 
actual  cost  and  expense  to  said  defendant  of  ten  thousand  dollars,  "^  ^^(u/»- 
and  was  used  b}-  him  for  the  purposes  for  which  it  was  designed  and    <^^\/^<i-bt 
intended  after  its  completion  in  1877  and  up  to  May  1,  1881. 

"  That  of  the  beer  so  manufactured  and  on  hand  prior  to  February 
19,   1881,  said  defendant  made  one   sale  since  May  1,  1881,  w^hich 
is   the   sale   charged  in   the  first   count  of  the  indictment,  said   sale 
being  made  on  the  above-described  premises ;   that  the  beer  so  sold 
was  in  the  original   packages  in  which  it  was  placed  after  its  manufac-    ^{rv 
ture.  and  was  not  sold  for  use  nor  used  on  said  premises  ;  and  that    ,p       '    . 
at  the  time  of  such  sale  said  defendant  had   no  permit  to  sell  intoxi-  ""^^  /aAoJU  <£^ 
eating  liquors,  as  provided  by  chapter  128  of  Laws  of  1881."  ~Jlj^  ftx:feojeAi 

Mugler  was  adjudged  to  be  guilty,  and  was  sentenced  to  pay  a  fine     ^      ^ 
of  one  hundred  dollars  and  costs,  and  motions  for  a  new  trial  and  in    '^^    tw.A<-c; 
arrest  of  judgment  were  overruled.     This  iudgment  being  affirmed  by    ^J  ■\j^^^^  {ijjdi 
the  Supreme  Court  of  tlie  State  on  appeal,  the  cause  was  brought  here       v 
by  writ  of  error  on  his  motion.  "^    '\\^tK,^^A\ 

The  indictment  in  the  second  case  cliarged  that,  on  the  first  day  of      Lc^cfcvct^ 
November,  1881,  in  Saline  Count}'  he  "did  unlawfullj^  manufacture,    ^      tt*xcv 
and  aid,  assist,    and   abet  in  the  manufacture  of  vinous,  spirituous,     '^ 
malt,  fermented,   and  other  intoxicating  liquors,   in  violation  of  the    '^^^^^ 
provisions  of  an  Act,"  &c.,  he  then  and  there  "  net  having  taken  out  xctl^A.  -|y{nn< 
and  not  having  a  permit  to  manufacture  intoxicating  liquors  as  pro-    J  f.    '  L 
vided  b}^  law,  contrary  to  the  statutes,''  &c. 

The  parties  made  the  following  agreed  statement  of  facts  which  was    -i^xA.  ^^  ^^ 
all  the  evidence  introduced  in  the  case.  }  w  rv^^  i 

"It  is  hereby  stipulated  and  agreed  that  the  facts  in  the   above- 
entitled  case  are,   and  that  the  evidence  would  prove  them  to  be,  as     ^cm^^aM  ^^ 
follows:  aiA-tU 

"That  the  defendant,  Peter  Mugler,   had  been  a  resident  of  the      ^yf^    Je 
State  of  Kansas  continually  since  the  year  1872  ;  that,  being  foreign    i/'^^tv^^  ^\5 
born,  he  in  that  year  declared  his  intention  to  become  a  citizen  of  the     ».t|viA^ 
United  States,  and  always  since  that  time  intending  to  become  such 
citizen,  he  did,  in  the  month  of  June,  1881,  by  the  judgment  of  the  yj^di.    '^*^^ 
District  Court  of  Wyandotte  County,  Kansas,  become  a  full  citizen  of  j       f  ■  i  h- 
the  United  States  and  of  the  State  of  Kansas.  /;o^fr^^<^ 


"That 
ery  on 


at  in  the  year  1877  said  defendant  erected  and  furnished  a  brew-  ^i     '/J/hk-i 
lots  Nos.  152  and  154  on  Third  Street,  in  the  city  of  Salina,      f 


Saline  County,  Kansas,  for  use  in  the  manufacture  of  an  intoxicating  .  Otl-£A  'vUs^ 
malt  liquor  commonl}-  known  as  beer.  vuJA'^'^'^^ 

"That  such  building  was  specially  constructed  and  adapted  for  the    ^S      ia/^ 
manufacture  of  such  malt  liquor,  at  an  actual  cost  and  expense  to  said  ^^^^  '    A 
defendant  of  ten  thousand  dollars,  and  was  used  by  him  for  the  pur-  Vw^'t^V  '^^ 


^  rww  -'kv^Lvt^l   A/vWxjj.  aiiJL  v«XcoL   <i-nvix.st5.  ^^  /ct^    \^ 


/ —    ^' 


MUGLER   V.   KANSAS.  [CIIAP.  V. 


784 


iA,-£ 


po  OS  for  which  it  was  designed  and  intended  after  its  completion  in 
lb77  and  up  to  May  1st,  1881.  That  said  brewery  was  at  all  times 
after  its  completion  and  on  May  1,  1881,  worth  the  sum  often  thou- 
sand dollars  for  use  in  the  manufacture  of  said  beer,  and  is  not 
worth  to  exceed  the  sum  of  twenty-five  hundred  dollars  for  an^' 
other  purpose.  That  said  defendant,  since  October  1,  1881,  has  used 
said  brewery  in  the  manner  and  for  the  pur[)ose  for  which  it  was  con- 
structed and  adapted  by  tlie  manufacturing  therein  of  such  intoxicating 
malt  liquors,  and  at  the  time  of  such  manufacture  of  said  malt  liquors 
said  defendant  had  no  permit  to  manufacture  the  same  for  medical, 
scientific,  or  mechanical  purposes,  as  provided  by  chapter  128  of  Laws 
of  1881." 

The  defendant  was  adjudged  to  be  guilt}-,  and  was  fined  one  hun- 
dred dollars  and  costs,  and,  as  in  the  other  case,  motions  for  a  new 
trial  and  in  arrest  of  judgment  were  overruled,  and  the  judgment  being 
affirmed  by  the  Supreme  Court  of  the  State  of  Kansas  on  appeal,  the 
defendant  sued  out  a  writ  of  error  to  review  it.  .  .  .  [The  assign- 
ment of  errors  is  here  set  forth.  It  sufficiently  appears  in  the 
opinion.] 

Mr.    George  G.    Vest.,  for  plaintiff  in  error. 

Mr.  B.  S.  Bradford,  Attorney-General  of  the  State  of  Kansas, 
3Ir.  George  R.  Peck,  Mr.  J.  B.  Johnson  and  Mr.  George  J.  Barker, 
for  defendant  in  error,   submitted  on  their  brief. 

On  the  7th  March,  188.5,  the  Legislature  of  Kansas  passed  an  Act 
"amendatory  of  and  supplemental  to"  the  Act  of  1881.  Among 
other  changes  made,  §  13  was  amended  so  as  to  read  as  shown  in  the 
footnote.^ 


<  ZouUr 

'''^'^•^^  "  1  For  convenience  this  section  is  reprinted  here,  although  it  will  lie  found,  infra,  in 

l^<y.        the  opinion  of  the  court. 

*^    IP"  "Sec.  13.     All  places  where  intoxicating  liquors  are  manufactured,  sold,  bartered. 

or  given  away  in  violation  of  any  of  the  provisions  of  this  Act,  or  where  intoxicating 

lAAM'^  \         liquors  are  kept  for  sale,  barter,  or  delivery  in  violation  of  this  Act  are  hereby  declared 

M  to  be  common  nuisances,  and  upon  the  judgment  of  any  court  having  jurisdiction  find- 

^   Cue  ing  such  a  place  to  be  a  nuisance  under  tliis  section,  the  sheriff,  his  deputy,  or  under 

sheriff,  or  any  constable  of  the  proper  county,  or  marshal  of  any  city  wnere  the  same 

is  located,  shall  be  directed  to  shut  up  and  abate  such  place  by  taking  possession 

thereof  and  destroying  all  intoxicating  liquors  found  therein,  together  with  all  signs. 

screens,  bars,  bottles,  glasses,  and  other  property  used  in  keeping  and  maintaining 

^      ,       '  said  nuisance,  and  the  owner  or  keeper  thereof  shall,  upon  conviction,  be  adjudged 

\,CA.    ^^  guilty  of  maintaining  a  common  nuisance,  and  shall  be  punished  by  a  fine  of  not  less 

f)  St    _  than  one  hundred  dollars  nor  more  than  five  hundred  dollars,  and  by  imprisonment  in 

X  Mf'^jA/^'^'  the  county  jail  not  less  than  thirty  days  nor  more  than  ninety  days.     The  attorney- 

0       ^'   general,  county  attorney,  or  any  citizen  of  the  county  where  such  nuisance  exists,  or  is 

y^  iJj(,v4/iA*^]^gp^^  Qj.  jg  niaintaincd,  may  maintain  an  action  in  the  name  of  the  State  to  abate  and 

y  perpetually  enjoin  the  same.     The.injnnction  shall  be  granted  at  the  commencement 

^       fpnT"  of  the  action,  and  no  bond  shall  be  required.     Any  person  violating  the  terms  of  any 

(1        i  injunction  granted  in  such  proceeding,  shall  be  punished  as  for  contempt,  by  a  fine  of 

a,    X>f  w*»      not  less  than  one  hundred  nor  more  than  five  hundred  dollars,  or  by  imprisonment  in 

t  ^0       .      the  county  jail  not  less  than  thirty  days  nor  more  than  six  months,  or  by  both  such 

(y^XMf\A*MAX  .flne  and  imprisonment,  in  the  discretion  of  the  court." 


CHAP,  v.] 


MUGLER   V.    KANSAS. 


785  >i^-   ^ 


On  the  13lh  August,  1886,  there  was  filed  in  the  office  of  the  Dis- 
trict Court  for  the  County  of  Atchison,  Kansas,  an  information  against 
Ziebold  and  his  partner,  who  were  proprietors  of  a  brewery  there. 
The  information  prayed  that  tlie  brewery  might  be  adjudged  to  be  a 
common  nuisance  ;  that  it  be  ordered  to  be  shut  up  and  abated  ;  that 


^ei/u 


~  the  defendants  be  enjoined  from  using  or  permitting  to  be  used  the 
premises  as  a  place  where  intoxicating  liquors  were  sold,  bartered,  or 
given  away,  or  were  kept  for  barter,  sale,  or  gift,  otherwise  than  b}- 
authority  of  law ;    and  that  the  defendants  might  be  enjoined   from 
keeping   the   brewer}'   open,   and   from   selling,   bartering,   or   giving 
away,  or  keeping  for  sale,  barter,  gift,  or  use  in  or  about  tlie  premises, 
or  manufacturing  for  barter,  sale,  or  gift  in  the  State  of  Kansas,  any 
malt,  vinous,  spirituous,  fermented,  or  other  intoxicating  liquors,  and 
from  permitting  such  liquors  to  be  sold,  &c.,  or  kept  for  sale,  &e.,  or 
manufactured  for  sale,  &e.  in  the  State  of  Kansas.     On  the  defend-    'P/yi^''^^^ 
ants'  motion  this  case  was  removed  to  the  Circuit  Court  of  the  United  ^^^ 
States,  where  an  amended  bill  in  equit}'  was  filed,  praying  for  the  relief 
asked  for  in  the  State  court.     After  joinder  of  issue  and  hearing  the_2;f  ^^  <VJt' 
Circuit  Court  dismissed  the  bill,  from  which  decree  the  State  appealed.      ,    '      fj      ' 

3Ir.  S.  B.  Bradford,  Attorney-General  of  the  State  of  Kansas,  "^^^^^  ^ 
Mr.  Edwin  A.  Austin,  Assistant  Attorney-General  of  that  State,  and 
3Ir.  J.  F.  Tufts,  Assistant  Attorney  General  for  Atchison  Countv, 
Kansas,  for  appellant  submitted  on  their  brief,  October  25,  1887, 
Mr.  Bradford  moved  the  court  to  reopen  the  cause  and  reassign  it 
for  argument.     October  26,  1887,  the  court  denied  the  motion. 

Mr.  Joseph  H.  Choate,  for  appellee,  3Tr.  Robert  M.  Eaton  and 
3Ir.  John   C    Tomlinson  were  with  him  on  his  brief. 

Mr.  .Justice  Harlan  delivered  the  opinion  of  tlje  court :  — 
•    These  cases  involve  an    inquiry   into   the    validity  of  certain  stat- 
utes of  Kansas  relating  to  tlie  manufacture    and  sale  of  intoxicating 
liquors.   .  .  . 

By  a  statute  of  Kansas,  approved  March  3,  1868,  it  was  made  a 
misdemeanor,  punishable  by  fine  and  imprisonment,  for  any  one, 
directly  or  indirectly,  to  sell  spirituous,  vinous,  fermented,  or  other 
intoxicating  liquors,  without  having  a  dram-shop,  tavern,  or  grocery 
license.  It  was  also  enacted,  among  other  things,  tiiat  every  place 
where  intoxicating  liquors  were  sold  in  violation  of  the  statute  should 
be  taken,  held,  and  deemed  to  be  a  common  nuisance  ;  and  it  was 
required  that  all  rooms,  taverns,  eating-houses,  bazaars,  restaurants, 
groceries,  coffee-houses,  cellars,  or  other  places  of  public  resort  where      .  . 

intoxicating  liquors  were  sold,  in  violation  of  law,  should  lie  abated  JytA^   ^^ 
as  public  nuisances.     Gen.   Stat.   Kansas,    1868,   c.   35,    §  6.  J         ALt 

But,  in  1880.  the  people  of  Kansas  adopted  a  more  stringent  policy-,    "v^*^^^^^^ 
On  the  2d  of  November   of  tiiat   year,   they  ratified  an   amendment  /lA/tyo  AJi^ 
to  the  State  Constitution,  which  declared  that  the  manufacture  and  sale 
of  intoxicating  liquors  should  be  forever  prohibited  in  that  State,  except 
for  medical,  scientific,  and  mechanical  purposes. 


i^iuAJi^ 


786  MUGLER   V.    KANSAS.  [CIIAP.  V. 

In  order  to  give  effect  to  that  amendment,  the  legislature  repealed 
the  Act  of  18G8,  and  passed  an  Act,  approved  February  19,  1881,  to 
take  effect  May  1,  1881,  entitled  "  An  Act  to  prohibit  the  manufacture 
and  sale  of  intoxicating  liquors,  except  for  medical,  scientific,  and 
mechanical  purposes,  and  to  regulate  the  manufacture  and  sale  thereof 
for  such  excepted  purposes."  Its  first  section  provides  "  that  any 
person  or  persons  wlio  shall  manufacture,  sell,  or  barter  any  spiritu- 
ous, malt,  vinous,  fermented,  or  other  intoxicating  liquors  shall  be 
guilty  of  a  misdemeanor:  Provided,  howecer^  That  such  liquors  may 
be  sold  for  medical,  scientific,  and  mechanical  purposes,  as  provided 
in  this  Act."  Tlie  second  section  makes  it  unlawful  for  an}-  person 
to  sell  or  barter  for  either  of  such  excepted  purposes  any  malt,  vinous, 
spirituous,  fermented,  or  other  intoxicating  liquors  without  having  pro- 
cured a  druggist's  permit  therefor,  and  prescribes  the  conditions  upon 
which  such  permit  may  be  granted.  The  third  section  relates  to  the 
giving  by  physicians  of  prescriptions  for  intoxicating  liquors  to  be 
used  by  their  patients,  and  the  fourth,  to  the  sale  of  such  liquors  b}^ 
druggists.  The  fifth  section  forbids  any  person  from  manufacturing 
or  assisting  in  the  manufacture  of  intoxicating  liquors  in  the  State, 
except  for  medical,  scientific,  and  mechanical  purposes,  and  makes 
provision  for  the  granting  of  licenses  to  engage  in  the  business  of 
manufacturing  liquors  for  such  excepted  purposes.  The  seventh  sec- 
tion declares  it  to  be  a  misdemeanor  for  any  person,  not  having  the 
required  permit,  to  sell  or  barter,  directly  or  indirectly,  spirituous, 
malt,  vinous,  fermented,  or  other  intoxicating  liquors  ;  the  punishment 
prescribed  being,  for  the  first  offence,  a  fine  not  less  than  one  hundred 
nor  more  than  five  hundred  dollars,  or  imprisonment  in  the  county 
jail  not  less  than  twenty  nor  more  than  ninety  days  ;  for  the  second 
offence,  a  fine  of  not  less  than  two  hundred  nor  more  than  five  hundred 
dollars,  or  imprisonment  in  the  county  jail  not  less  than  sixty  days 
nor  more  than  six  months  ;  and  for  every  subsequent  offence,  a  fine 
not  less  than  five  hundred  nor  more  tlian  one  thousand  dollars,  or 
imprisonment  in  the  county  jail  not  less  than  three  months  nor  more 
than  one  year,  or  both  such  fine  and  imprisonment,  in  the  discretion 
of  the  court.  Tlie  eighth  section  provides  for  similar  fines  and  punisli- 
mcnts  against  persons  who  manufacture,  or  aid,  assist,  or  abet  the 
manufacture  of  any  intoxicating  liquors  without  having  the  required 
permit.  The  thirteenth  section  declares,  among  other  things,  all 
places  where  intoxicating  liquors  are  manufactured,  sold,  bartered, 
or  given  away,  or  are  kept  for  sale,  barter,  or  use,  in  violation  of 
the  Act,  to  be  common  nuisances  ;  and  provides  that  upon  the  judg- 
ment of  any  court  having  jurisdiction  finding  such  place  to  be  a 
nuisance,  the  proper  oflBcer  shall  be  directed  to  shut  up  and  abate 
the  same. 

Under  that  statute,  the  prosecutions  against  Mugler  were  instituted. 
It  contains  other  sections  in  addition  to  those  above  referred  to  ;  but  as 
they  embody  merely  the  details  of  the  general  scheme  adoi)ted  by  the 


CHAP,  v.]  MUGLER  V.    KANSAS.  787 

State  for  the  prohibition  of  the  manufacture  and  sale  of  intoxicating 
Hquors,  except  for  the  purposes  specified,  it  is  uunecessar}'  to  set  them 
out. 

On  the  7th  of  March,  1885,  the  legislature  passed  an  Act  amenda- 
tory and  supplementary  to  that  of  1881.  The  thirteenth  section  of 
the  former  Act,  being  the  one  upon  which  the  suit  against  Ziebold 
&  riagelin  is  founded,  will  be  given  in  full  in  a  subsequent  part  of 
this  opinion.   .    .   . 

T\\Q  goneral  question  in  each  case  is,  whether  the  foregoing  statutes 
of  Kansas  are  in  conflict  with  that  clause  of  the  Fouiteenth  Amend- 
ment, which  provides  that  "  no  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States  ;  nor  shall  awy  State  deprive  any  person  of  life,  liberty, 
or  propertj-,  without  due  process  of  law." 

That  legislation  by  a  State  prohibiting  the  manufacture  within  her 
limits  of  intoxicating  liquors,  to  be  there  sold  or  bartered  for  general 
use  as  a  beverage,  does  not  necessaril}-  infringe  an}'  right,  privilege, 
or  immunity  secured  by  the  Constitution  of  the  United  States,  is  made 
clear  by  the  decisions  of  this  court,  rendered  before  and  since  the 
adoption  of  the  Fourteenth  Amendment ;  to  some  of  which,  in  view 
of  questions  to  be  presently'  considered,  it  will  be  well  to  refer.  .  .  . 
[Here  follows  a  statement  of  The  License  Cases,  5  How.  501,  and 
quotations  from  Bartmeyer  v.  Ibioa,  18  Wall.  129,  and  Beer  Co.  v. 
Mass.,  97  U.  S.  25.] 

Finally,  in  Foster  v.  Kansas,  112  U.  S.  201,206,  the  court  said  that 
the  question  as  to  the  constitutional  power  of  a  State  to  proliibit  the 
manufacture  and  sale  of  intoxicating  liquors  was  no  longer  an  open 
one  in  this  court.  These  cases  rest  upon  the  acknowledged  right  of 
the  States  of  the  Union  to  control  their  purely  internal  affairs,  and,  in 
so  doing,  to  protect  the  health,  morals,  and  safety  of  their  people  by 
regulations  that  do  not  interfere  with  the  execution  of  the  powers  of 
the  general  government,  or  violate  riglits  secured  by  the  Constitution 
of  the  United  States.  The  power  to  establish  such  regulations,  as  was 
said  in  Gibbons  v.  Ogden,  9  Wheat.  1,  203, reaches  everything  within 
the  territory  of  a  State  not  surrendered  to  the  national  government. 

It  is,  however,  contended,  that,  although  the  State  may  prohibit  the 
manufacture  of  intoxicating  liquors  for  sale  or  barter  w-ithin  her  limits, 
for  general  use  as  a  beverage,  "  no  j3onv_eiition  or  logislaUireJias  the 
riglit^_undei^  our  form  of  government,  to  j3rohibit_anv  citizen  from 
manufacturingJ'orJiis_own  use,  or  for  export,  or  storage,  an"?  ai-ticle 
of  food  or  drink  not  endangering  or^  affecting  the  riglits  of  otHers." 
The  argument'made  In  support  of  the  first  branch  of  this  proposition, 
briefly  stated,  is.  that  in  the  implied  compact  between  the  State  and 
the  citizen  certain  rights  are  reserved  by  the  latter,  which  are  guaran- 
teed by  the  constitutional  provision  protecting  persons  against  being 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law,  and 
with  which  the  State  cannot  interfere ;  ^hat  among  those  rights  is  that 


788  MUGLER   V.   KANSAS.  [CIIAP.  V. 

of  manufactniino;  for  one's  use  cither  food  or  drink  ;  and  that  while, 
according  to  tlie  doctrines  of  the  Commune,  the  State  ma}-  control 
the  tastes,  appetites,  habits,  dress,  food,  and  drink  of  the  people,  our 
system  of  government,  based  upon  the  individualit}'  and  intelligence 
of  the  citizen,  does  not  claim  to  control  him,  exce[)t  as  to  his  conduct 
to  others,  leaving  him  the  sole  judge  as  to  all  that  only  affects  himself. 

It  will  be  observed  that  the  proposition,  and  the  argument  made  in 
support  of  it,  equally  concede  that  the  right  to  manufacture  drink  for 
one's  personal  use  is  subject  to  the  condition  that  such  manufacture 
does  not  endanger  or  affect  the  rights  of  others.  If  such  manufacture 
does  prcj udicially  affect  the  rights  and  interests  of  the  community,  it 
follows,  from  the  very  premises  stated,  that  society  has  the  power  to 
protect  itself,  by  legislation,  against  the  injurious  consequences  of  that 
business.  As  was  said  in  Munn  v.  Illinois,  94  U.  S.  113,  124,  while 
power  does  not  exist  with  the  whole  people  to  control  rights  that  are 
purel}-  and  exclusively  private,  government  ma}'  require  "each  citizen 
to  so  conduct  himself,  and  so  use  his  own  property,  as  not  unneces- 
sarily to  injure  another." 

But  by  whom,  or  by  what  authority,  is  it  to  be  determined  whether 
the  manufacture  of  particular  articles  of  drink,  either  for  general 
use  or  for  the  personal  use  of  the  maker,  will  injuriously  affect  the 
public ?  Power  to  determine  such  questions,  so  as  to  bind  all,  must 
exist  somewhere  ;  else  society  will  be  at  the  mercy  of  the  few,  who, 
regarding  only  their  own  appetites  or  passions,  may  be  willing  to 
imperil  the  peace  and  security  of  the  many,  provided  only  they  ai-e 
permitted  to  do  as  they  please.  Under  our  system  thai  power  is 
lodged  with  the  legislative  branch  of  the  government.  It  belongs  to 
that  department  to  exert  what  are  known  as  the  police  powers  of  the 
State,  and  to  determine,  primarily  what  measures  are  appropriate  or 
needful  for  the  protection  of  the  public  morals,  the  public  health, 
or  the  public  safety. 

It  does  not  at  all  follow  that  every  statute  enacted  ostensibly  for 
the  promotion  of  these  ends,  is  to  be  accepted  as  a  legitimate  exertion 
of  the  police  powers  of  the  State.  There  are,  of  necessity,  hmits 
beyond  which  legislation  cannot  rightfully  go.  .  .  . 

The  courts  are  not  bound  b}'  mere  forms,  nor  are  the}'  to  be  misled 
b}'  mere  pretences.  The}'  are  at  liberty  —  indeed,  are  under  a  solemn 
duty  —  to  look  at  the  substance  of  things,  whenever  they  enter  upon 
the  inquiry  whether  the  legislature  has  transcended  the  limits  of  its 
authority.  If,  therefore,  a  statute  purporting  to  nave  been  enacted 
to  protect  the  public  health,  the  public  morals,  or  the  public  safety, 
has  no  real  or  substantial  relation  to  those  objects,  pr  is  a  palpable 
invasion  of  rights  secured  by  the  fundamental  law,  it  is  the  duty  of  the 
courts  to  so  adjudge,  and  thereby  give  effect  to  the  Constitution. 

Keeping  in  view  these  principles,  as  governing  the  relations  of  the 
judicial  and  legislative  departments  of  government  with  each  other, 
it  is  difficult  to  perceive  any  ground  for  the  judiciary  to  declare  that 


CHAP,  v.]  MUGLER   V.   KANSAS.  789 

the  prohibition  by  Kansas  of  the  manufacture  or  sale,  within  her  limits , 
of  intoxicating:  liquors  for  general  use  there  as  a  beverage,  is  not 
fairly  adauted  to  the  end  of  ijrotectino;  the  community  aaaiust  the  evils 
which  confessedly  result  from  the  excessive  use  of  ardent  spirits.  There 
is  no  justification  for  holding  that  the  State,  under  the  guise  merely  of 
police  regulations,  is  here  aiming  to  deprive  the  citizen  of  his  con- 
stitutional rights  ;  for  we  cannot  sluit  out  of  view  the  fact,  within  the 
knowledge  of  all,  that  the  public  health,  the  ijublic  morals,  and  the 
public  safety,  may  be  endangered  by  the  general  use  of  intoxicating 
drinks ;  nor  the  fact,  established  by  statistics  accessible  to  every- 
one, that  the  idleness,  disorder,  pauperism,  and  crime  existing  in  the 
country  are,  in  some  degree  at  least,  traceable  to  this  evil.  If,  there- 
fore, a  State  deems  the  absolute  prohibition  of  the  manufacture  and 
sale,  within  her  limits,  of  intoxicating  liquors  for  other  than  medical, 
scientific,  and  manufacturing  purposes,  to  be  necessary  to  the  peace 
and  security  of  society,  the  courts  cannot,  without  usurping  legisla- 
tive functions,  override  the  will  of  the  people  as  thus  expressed  by 
their  chosen  representatives.  They  have  nothing  to  do  with  the  mere 
policy  of  legislation.  Indeed,  it  is  a  fundamental  principle  in  our 
institutions,  indispensable  to  the  preservation  of  public  liberty,  that 
one  of  the  separate  departments  of  government  shall  not  usurp  powers 
committed  by  the  Constitution  to  another  department.  And  so,  if,  in 
the  judgment  of  the  legislature,  the  manufacture  of  intoxicating  liquors 
for  the  maker's  own  use,  as  a  beverage,  would  tend  to  cripple,  if  it  did 
not  defeat,  the  effort  to  guard  the  community  against  the  evils  attendin g 
the  excessive  use  of  such  liquors,  i,t  is  not  for  the  courts,  upon  their 
views  as  to  what  is  best  and  safest  for  the  community,  to  disregard 
the  legislative  determination  of  that  question.  So  far  from  such  a  regu- 
lation having  no  relation  to  the  general  end  sought  to  be  accomplished, 
the  entire  scheme  of  prohibition,  as  embodied  in  the  Constitution  a n d 
laws  of  Kansas,  might  fail,  if  the  right  of  each  citizen  to  manufacture  in- 
toxicating liquors  for  his  own  use  as  a  beverage  were  recognized.  Such 
a  right  does  not  inhere  in  citizenship.  Nor  can  it  be  said  that  govern- 
ment interferes  with  or  impairs  an}-  one's  constitutional  rights  of 
libert}-  or  of  propert}',  when  it  determines  that  the  manufacture  and 
sale  of  intoxicating  drinks,  for  general  or  individual  use,  as  a  beverage, 
are,  or  may  become,  hurtful  to  society,  and  constitute,  therefore,  a  busi- 
ness in  which  no  one  may  lawfully  engage.  Those  rights  are  best  se- 
cured, in  our  government,  by  the  observance,  upon  the  part  of  all,  of  such 
regulations  as  are  established  by  competent  authority  to  promote  the 
common  good.  No  one  may  rightfully  do  that  which  the  law-making 
power,  upon  reasonable  grounds,  declares  to  be  prejudicial  to  the 
general  welfare. 

This  conclusion  is  unavoidable,  unless  the  Fourteenth  Amendment 
of  the  Constitution  takes  from  the  States  of  the  Union  those  powers 
of  police  that  were  reserved  at  the  time  the  original  Constitution 
was  adopted.     But  this  court  has  declared,  upon  full  consideration,  in 


790  MUGLER   V.    KANSAS.  [CIIAP.  V. 

JBarhier  \.  Connolly,  113  U.  S.  27,  31,  that  the  Fourteenth  Aiueucl- 
ment  had  uo  such  effect.  .  .   . 

.  .  .  It  is  contended  that,  as  the  prhnary  and  piincipal  use  of  beer 
is  as  a  beverage  ;  as  their  respective  breweries  were  erected  when  it 
was  hiwful  to  engage  in  the  manufacture  of  beei-  for  every  purpose  ;  as 
such  establishments  will  become  of  no  value  as  property,  or,  at  least, 
will  be  materially  diminished  in  value,  if  not  employed  in  the  manu- 
facture of  beer  for  every  purpose  ;  the  ])rohibition  upon  their  bein<r 
so  employed  is.  in  effect,  a  taking  of  property  for  i)ublic  use  without 
compensation,  and  depriving  the  citizen  of  his  property  without  due 
l)rocess  of  law,  y  In  other  \vord3,  although  the  State,  in  the  exercise 
of  lier  police  powers,  may  lawfully  prohibit  the  manufacture  and  sale, 
within  her  limits,  of  intoxicating  liquors  to  be  used  as  a  beverage, 
legislation  having  that  object  in  view  cannot  be  enforced  against  those 
who,  at  the  time,  happen  to  own  property,  the  chief  value  of  which 
consists  in  its  fitness  for  such  manufacturing  purposes,  unless  com- 
pensation is  first  made  for  the  diminution  in  the  value  of  their  prop- 
ert}-,  resulting  from  such  prohibitor}'  enactments."^ 

This  interpretation  of  the  Fourteenth  Amendment  is  inadmissible. 
It  cannot  be  supposed  that  the  tStates  intended,  by  adopting  that 
Amendment,  to  impose  restraints  upon  the  exercise  of  their  i)owers 
for  the  protection  of  the  safety,  health,  or  morals  of  the  community . 
In  respect  to  contracts,  the  obligations  of  which  are  protected  against 
hostile  State  legislation,  this  court  in  Butchers'  Union  Co.  v.  Cres- 
cent City  Co..,  Ill  U.  S.  746,  751,  said  that  the  State  could  not,  by 
an}'  contract,  limit  the  exercise  of  her  power  to  the  prejudice  of  the 
public  health  and  the  public  morals.  So,  in  Stone  v.  Ilississippi,  101 
U.  S.  814,  816,  where  the  Constitution  was  invoked  against  the  repeal 
by  the  State  of  a  charter,  granted  to  a  private  corporation,  to  conduct 
a  lottery,  and  for  which  that  corporation  paid  to  the  State  a  valuable 
consideration  in  money,  the  court  said  :  "  No  legislature  can  bargain 
away  the  public  health  or  the  public  morals.  The  people  themselves 
cannot  do  it,  much  less  their  servants.  .  .  .  Government  is  organ- 
ized with  a  view  to  their  preservation,  and  cannot  divest  itself  of 
the  power  to  provide  for  them."  Again,  in  JVew  Orleans  Gas  Co. 
V.  Louisiana  Light  Co..,  115  U.  S.  650,  672:  "The  constitutional 
prohibition  upon  State  laws  impairing  the  obligation  of  contracts  does 
not  restrict  the  power  of  the  State  to  protect  the  public  health,  the 
public  morals,  or  the  public  safety,  as  the  one  or  the  other  may  be 
involved  in  the  execution  of  such  contracts.  Rights  and  privileges 
arising  from  contracts  with  a  State  are  subject  to  regulations  for  the 
protection  of  the  public  health,  the  public  morals,  and  the  public  safety, 
in  the  same  sense,  and  to  the  same  extent,  as  are  all  contracts  and  all 
property,  whether  owned  by  natural  persons  or  corporations." 

The  principle,  that  no  person  shall  be  deprived  of  life,  liberty,  or 
propert}-,  without  due  process  of  law,  was  embodied,  in  substance,  in  the 
constitutions  of  nearly  all,  if  not  all,  of  the  States  at  the  time  of  the  adop- 


y 


CHAP,  v.]  MUGLER   V.    KANSAS.  791 

tion  of  the  Fourteenth  Amendment ;  and  it  has  never  been  regarded 
as  incompatible  with  the  ijrinciple,  eciually  vital,  because  essential  to 
the  peace  and  safety  of  society,  that  all  property  in  this  country  is 
held  under  the  implied  obligation  that  the  owner's  use  of  it  shall  not 
be  iniurious  to  the  community.  Beer  Co.  v.  Massachusetts,  97  U.  S.  25, 
32  ;  Commonwealth  v.  Alger,  7  Cush.  53.  An  illustration  of  this 
doctrine  is  afforded  b}'  Patterson  v.  Kentucky,  97  U.  S.  501.  .  .  . 
[Here  follows  a  statement  of  this  case.] 

See  also  United  States  v.  Dewitt,  9  Wall.  41  ;  License  Tax  Cases, 
5  Wall.  462 ;  Pervear  v.  Commonwealth,  5  Wall.  475. 

Another  decision,  very  much  in  point  upon  this  branch  of  the  case, 
is  Fertilizing  Co.  v.  Htjde  Park,  97  U.  S.  659,  667,  also  decided  after 
the  adoption  of  the  Fourteenth  Amendment.  The  court  there  sustained 
the  validity  of  an  ordinance  of  the  village  of  Hyde  Park,  in  Cook 
County,  Illinois,  passed  under  legislative  authority,  forbidding  any 
person  from  transporting  through  that  village  offal  or  other  offensive 
or  unwholesome  matter,  or  from  maintaining  or  carrying  on  an  offen- 
sive or  unwholesome  business  or  establislnnent  within  its  limits.  The 
Fertilizing  Company  had,  at  large  expense,  and  under  authority  ex- 
pressly conferred  by  its  charter,  located  its  works  at  a  particular  point 
in  the  count}'.  Besides,  the  chailer  of  the  village,  at  that  time,  pro- 
vided that  it  should  not  interfere  with  parties  engaged  in  transporting 
animal  matter  from  Chicago,  or  from  manufacturing  it  into  a  fertilizer 
or  other  chemical  product.  The  enforcement  of  the  ordinance  in  ques- 
tion operated  to  destro}^  the  business  of  the  company,  and  seriously'  to 
impair  the  value  of  its  propei'ty.  As,  however,  its  business  had  become 
a  nuisance  to  the  community  in  which  it  was  conducted,  producing  dis- 
comfort, and  often  sickness,  among  large  masses  of  people,  the  court 
maintained  the  authority  of  the  village,  acting  under  legislative  sanc- 
tion, to  protect  the  public  health  against  such  nuisance.  It  said  :  •'  We 
cannot  doubt  that  the  police  power  of  the  State  was  applicable  and 
adequate  to  give  an  effectual  remed}'.  That  power  belonged  to  the 
States  when  the  Federal  Constitution  was  adopted.  The}'  did  not 
surrender  it,  and  they  all  have  it  now.  It  extends  to  the  entire  prop- 
ert}^  and  business  within  their  local  jurisdiction.  Both  are  subject  to 
it  in  all  proper  cases.  It  rests  u])on  the  fundamental  i^rinciple  that 
every  one  shall  so  use  his  own  as  not  to  wrong  and  injure  anotlier.  To 
regulate  and  abate  nuisances  is  one  of  its  ordinary  functions." 

It  is  supposed  by  the  defendants  that  the  doctrine  for  which  they 
contend  is  sustained  b}'  PumpeUy  v.  Green  Bay  Co.,  13  Wall.  166. 
But  in  that  view  we  do  not  concur.  That  was  an  action  for  the  recov- 
ery of  damages  for  the  overflowing  of  the  plaintiff's  land  by  water, 
resulting  from  the  construction  of  a  dam  across  a  river.  The  defence 
was  that  the  dam  constituted  a  part  of  the  system  adopted  b}'  the  State 
for  improving  the  navigation  of  Fox  and  Wisconsin  rivers ;  and  it  was 
contended  that  as  the  damages  of  which  the  plaintiff  complained  were 
onl}'  the  result  of  the  improvement,  under  legislative  sanction,  of  a 


792  MUGLER  V.   KANSAS.  [CHAP.  V. 

navigable  stream,  he  was  not  entitled  to  compensation  from  the  State 
or  its  agents.  The  case,  therefore,  involved  the  question  whether  the 
overflowing  of  the  plaintiff's  land,  to  such  an  extent  that  it  became 
practically  unfit  to  be  used,  was  a  taking  of  property,  within  the  mean- 
ing of  the  Constitution  of  Wisconsin,  providing  that  "  the  property  of 
no  person  shall  be  taken  for  public  use  without  just  compensation 
therefor."  This  court  said  it  would  ))e  a  very  curious  and  unsatisfactory 
result,  were  it  held  that,  "  if  the  government  refrains  from  the  absolute 
conversion  of  real  property  to  the  uses  of  the  public,  it  can  dcstro}-  its 
value  entirel}',  can  inflict  irreparable  and  permanent  injury  to  an}' 
extent,  can,  in  effect,  subject  it  to  total  destruction,  without  making 
an}'  compensation,  because,  in  the  narrowest  sense  of  that  word,  it  is 
not  taken  for  the  public  use.  Such  a  construction  would  pervert  the 
constitutional  provision  into  a  restriction  upon  the  rights  of  the  citizen, 
as  those  rights  stood  at  the  common  law,  instead  of  the  government, 
and  make  it  an  authority  for  the  invasion  of  private  right  under  the 
pretext  of  the  public  good,  which  had  no  warrant  in  the  laws  or 
practices  of  our  ancestors."     pp.  177,  178. 

These  principles  have  no  application  to  the  case  under  consideration. 
The  question  in  Paiiqjellij  v.  Green  Bay  Coinpany  arose  under  the 
State's  power  of  eminent  domain  ;  while  the  question  now  before  us 
arises  under  what  are,  strictly,  tlie  police  powers  of  the  State,  exerted 
for  the  protection  of  the  health,  morals,  and  safety  of  the  people. 
That  case,  as  this  court  said  in  Transportation  Co.  v.  Chicago.,  99 
U.  S.  635,  64:'2,  was  an  extreme  qualification  of  the  doctrine,  universally 
held,  that  "  acts  done  in  the  proper  exercise  of  governmental  powers, 
and  not  directly  encroaching"  upon  private  property,  though  these  con- 
sequences may  impair  its  use,"  do  not  constitute  a  taking  within  the 
meaning  of  the  constitutional  provision,  or  entitle  the  owner  of  such 
property  to  compensation  from  the  State  or  its  agents,  or  give  him  any 
right  of  action.  It  was  a  case  in  which  there  was  a  "permanent 
flooding  of  private  propertv,"  a  "  physical  invasion  of  the  real  estate 
of  the  private  owner,  and  a  practical  ouster  of  his  possession."  His 
property  was,  in  effect,  required  to  be  devoted  to  the  use  of  the  public, 
and,  consequently,  he  was  entitled  to  compensation. 

As  already  stated,  the  present  case  must  be  governed  by  principles 
that  do  not  involve  the  power  of  eminent  domain,  in  the  exercise  of 
which  property  may  not  be  taken  for  public  use  without  compensation. 
A  proliibition  simply  upon  the  use  of  i)roperty  for  purposes  that  are 
declared,  by  valid  legislation,  to  be  injurious  to  the  health,  morals,  or 
safety  of  the  community,  cannot,  in  any  just  sense,  be  deemed  a  taking 
or  an  appropriation  of  property  for  the  public  benefit.  Such  legisTalion 
does  not  disturb  the  owner  in  the  control  or  use  of  his  property  for 
lawful  purposes,  nor  restrict  his  right  to  dispose  of  it,  but  is  only 
a  declaration  by  the  State  that  its  use  by  any  one,  for  certain  forbidden 
purposes,  is  prejudicial  to  tlie  public  interests.  Nor  can  legislation  of 
that  character  come  within  the  Fourteenth  Amendment,  in  any  case, 


CHAP,  v.]  MUGLER  V.   KANSAS.  793 

unless  it  is  apparent  that  its  real  object  is  not  to  protect  the  commu- 
nity, or  to  promote  the  general  well-being,  but/  under  the  guise  of 
police  regulation,  to  deprive  the  owner  of  his  libert}'  and  property, 
without  due  process  of  law.     The  power  which  the  States  have  of  pro 


C^v  hibiting  such  use  by  individuals  of  their  r^ropcrty  as  will  be  prejudicial 

^^       to  the  health,  the  morals,  or  the  safety  of  the  public,  is  not  —  and,  con- 


sistently^ith  the  existence  and~safety  of  organized  society,  cannot  be 
—  burdened  with  the  condition  that  the  State  must  compensate  such 
\;v-^^  individual  owners  for  pecuniary  losses  they  may  sustain,  by  reason  of 
their  not  beino;  permitted,  by  a  noxious  use  of  their  property,  to  intiict 
"X^iM^  injury  upon  the  community.  The  exercise  of  the  police  power  by  the 
destruction  of  property  which  is  itself  a  public  nuisance,  or  the  pro- 
hibition of  its  use  in  a  particular  way,  whereby  its  value  becomes 
depreciated,  is  very  different  from  taking  propert}^  for  public  use,  or 
from  depriving  a  person  of  his  i^roperty  without  due  process  of  law.  In' 
the  one  case,  a  nuisance  only  is  abated  ;  in  the  other,  unoft'cnding 
property  is  taken  away  from  an  innocent  owner. 

It  is  true,  that,  when  the  defendants  in  tliese  cases  purchased  or 
erected  their  breweries,  the  laws  of  the  State  did~riot  forbid  the  manu- 
facture of  intoxicating  liquors.  But  the  State  did  not  thereby  give  any 
assurance,  or  come  under  an  obligation,  that  its  legislation  uijon  that 
subject  would  remain  uncliangcd.  Indeed,  as  was  said  in  Stone  v. 
Mississippi,  above  cited,  the  supervision  of  the  public  health  and  the 
public  morals  is  a  governmental  power,  "  continuing  in  its  nature," 
and  "  to  be  dealt  with  as  the  special  exigencies  of  the  moment  may 
require  ;  "  and  that,  "  for  this  purpose,  the  largest  legislative  discretion 
is  allowed,  and  the  discretion  cannot  be  parted  with  any  more  than  the 
power  itself."  So  in  Beer  Co.  v.  Massachusetts,  97  U.  S.  32  :  "  If  the 
public  safety  or  the  public  morals  require  the  discontinuance  of  an}^ 
manufacture  or  traffic,  the  hand  of  the  legislature  cannot  be  staj^ed 
from  providing  for  its  discontinuance  by  any  incidental  inconvenience 
which  individuals  or  corporations  may  suffer." 

It  now  remains  to  consider  certain  questions  relating  particularly  to 
the  thirteenth  section  of  the  Act  of  1885.  That  section  —  which  takes 
the  place  of  §  13  of  the  Act  of  1881  —  is  as  follows.  .  .  .  [This  is 
given  ante,  p.  784,  note.] 

It  is  contended  by  counsel  in  the  case  of  Kansas  v.  Ziebold  &  Hage- 
lin,  that  the  entire  scheme  of  this  section  is  an  attempt  to  deprive 
persons  who  come  within  its  provisions  of  their  property  and  of  their 
liberty  without  due  process  of  law;  especiall}',  when  taken  in  connec- 
tion with  that  clause  of  §  14  (amendatory  of  §  21  of  the  Act  of  1881) 
which  provides  that  "  in  prosecutions  under  this  Act,  by  indictment  or 
otherwise,  ...  it  shall  not  be  necessary'  in  the  first  instance  for  the  State 
to  prove  that  the  party  charged  did  not  haye  a  permit  to  sell  intoxicating 
liquors  for  the  excepted  purposes." 

We  are  unable  to  perceive  anything  in  thesp  rpgnlntions  inrnnRistpnt. 
with  the  constitutional  guarantees  of  liberty  and  property.     The  State 


794  MUGLEU   V.    KANSAS.  [CHAP.  V. 

having  authority  to  prohibit  the  manufacture  and  sale  of  intoxicating 
liquors  for  other  than  medical,  scientific,  and  mechanical  purposes,  we 
do  not  doubt  her  power  to  declare  that  an}-  place,  kept  and  maiutaincd 
for  the  illegal  manufacture  and  sale  of  such  liquors,  shall  be  deemed  a 
connuon  nuisance,  and  be  abated,  and ,  at  the  same  time,  to  provide  for 
the  indictment  and  trial  of  the  offender.  One  is  a  proceeding;  against 
the  jjropertv  used  for  forbidden  purposes,  while  the  other  is  for  the 
punishment  of  the  offender. 

It  is  said  that  by  the  thirteenth  section  of  the  Act  of  1885,  the  legis- 
lature, finding  a  brewery  within  the  State  in  actual  operation,  without 
notice,  trial,  or  hearing,  by  the  mere  exercise  of  its  arbitrary  caprice, 
declares  it  to  be  a  common  nuisance,  and  then  prescribes  the  conse- 
quences which  are  to  follow  inevitably  b}'  judicial  mandate  required  b}- 
the  statute,  and  involving  and  permitting  the  exercise  of  no  judicial 
discretion  or  judgment ;  that  the  brewery  being  found  in  operation,  the 
court  is  not  to  determine  whether  it  is  a  common  nuisance,  but,  un d e r 
the  command  of  the  statute,  is  to  find  it  to  be  one  ;  that  it  is  not  the 
liquor  made,  or  the  making  of  it,  which  is  thus  enacted  to  be  a  common 
nuisance,  but  the  place  itself,  including  all  the  property  used  in  keep- 
ing and  maintaining  the  common  nuisance  ;  that  the  judge  having  thus 
signed  without  inquiry  —  and,  it  may  be,  contrary  to  the  fact  and 
against  his  own  judgment  —  the  edict  of  the  legislature,  the  court  is 
commanded  to  take  possession  by  its  officers  of  the  place  and  shut  it 
up  ;  nor  is  all  this  destruction  of  property,  by  legislative  edict,  to  be 
made  as  a  forfeiture  consequent  upon  conviction  of  any  offence,  but 
merely  because  the  legislature  so  commands  ;  and  it  is  done  by  a  court 
of  equity,  without  any  previous  conviction  first  had,  or  an}-  trial  known 
to  the  law. 

This,  certainly,  is  a  formidable  arraignment  of  the  legislation  of 
Kansas,  and  if  it  were  founded  upon  a  just  interpretation  of  her  stat- 
utes, the  court  would  have  no  difficulty  in  declaring  that  they  could  not 
be  enforced  without  infringing  the  constitutional  rights  of  the  citizen. 
But  those  statutes  have  no  such  scope  and  are  attended  with  no  such 
results  as  the  defendants  suppose.  The  court  is  not  required  to  give 
eflfect  to  a  legislative  "  decree '"  or  "  edict,"  unless  ever}-  enactment  b}- 
the  law-making  power  of  a  State  is  to  be  so  characterized.  It  is  not 
declared  that  every  establishment  is  to  be  deemed  a  common  nuisance  v 
because  it  may  have  been  maintained  prior  to  the  |)assage  of  the  statute  ■V^K  ^^ 
as  a  place  for  manufacturing  intoxicating  liquors.  The  statute  is  i)ro-  \  ^ 
spective  in  its  operation,  that  is,  it  does  not  put  the  brand  of  a  common  V^  ^ 
nuisance  u|)on  any  place,  unless,  after  its  passage,  that  place  is  kept  ^  y'jy'\ 
and  maintained  for  purposes  declared  by  the  legislature  to  be  injurious  \^  )' 
to  the  community.  Nor  is  the  court  required  to  adjudge  any  place  to  v*^  ^j^ 
be  a  common  nuisance  simpl}-  because  it  is  charged  by  the  State  to  be  ^  "^'  '\ 
such.  It  must  first  find  it  to  be  of  that  character ;  that  is,  must 
ascertain,  in  some  legal  mode,  whether  since  the  statute  was  jjassed  ^i^' 
the  place  in  question  has  been,  or  is  being,  so  used,  as  to  make  it  a 
common  nuisance. 


CHAP,  v.]  MUGLER  V.   KANSAS.  795 

Equally  untenable  is  the  proposition  that  proceedings  in  equity  for 
the  purposes  indicated  in  the  thirteenth  section  of  the  statute  are 
inconsistent  with  due  process  of  law.  "In  regard  to  public  nui- 
sances," Mr.  Justice  Story  says,  "the  jurisdiction  of  courts  of  equity 
seems  to  be  of  a  very  ancient  date,  and  has  been  distinctly  traced 
back  to  the  reign  of  Queen  Elizabeth.  Tiie  jurisdiction  is  applicable 
not  only  to  public  nuisances,  strictly  so  called,  but  also  to  purprestures 
upon  public  rights  and  property.  ...  In  case  of  public  nuisances, 
properly  so  called,  an  indictment  lies  to  abate  them,  and  to  punish  the 
offenders.  But  an  information,  also,  lies  in  equity  to  redress  the  griev- 
ance by  wa}'  of  injunction."  2  Story's  Eq.  §§  921,  922.  The  ground 
of  this  jurisdiction  in  cases  of  purpresture,  as  well  as  of  public  nui- 
sances, is  the  ability'  of  courts  of  equity  to  give  a  more  speedy,  effectual, 
and  permanent  remedy,  than  can  be  had  at  law.  They  can  not  only 
prevent  nuisances  that  are  threatened,  and  before  irreparable  mischief 
ensues,  but  arrest  or  abate  those  in  progress,  and,  bj'  perpetual  injunc- 
tion protect  the  public  against  them  in  the  future  ;  whereas  courts  of 
law  can  only  reach  existing  nuisances,  leaving  future  acts  to  be  the 
subject  of  new  prosecutions  or  proceedings.  This  is  a  salutary  juris- 
diction, especially  where  a  nuisance  affects  the  health,  morals,  or  safet}' 
of  the  community.  Though  not  frequentl}^  exercised,  the  power  un- 
doubtedl}'  exists  in  courts  of  equity  thus  to  protect  the  public  against 
injur}'.  District  Attorney  v.  Lynn  and  Boston  Railroad  Co.,  16  Gra}', 
242,  245  ;  Attorney-General  v.  N^ew  Jersey  Hailroad,  2  Green,  Ch. 
139;  Attorney- General  v.  Tudor  Ice  Co.,  10-1  Mass.  239,  244;  State 
V.  Mayor,  5  Porter  (Ala.),  279,  294;  Hoole  v.  Attorney- General,  22 
Ala.  190,  194  ;  Attorney-General  v.  Hunter,  1  Dev.  Eq.  12  ;  Attorney- 
General  \.  Forbes,  2  Myl.  &  Cr.  123,  129,  133;  Attorney- General  v. 
Great  Northern  Maihoay  Co.,  1  Drew.  &  Sm.  154,  IGl  ;  Eden  on 
Injunctions,  259  ;  Kerr  on  Injunctions  (2d  ed.),  168. 

As  to  the  objection  that  the  statute  makes  no  provision  for  a  jury 
trial  in  cases  like  this  one,  it  is  sufficient  to  say  that  such  a  mode  of 
trial  is  not  required  in  suits  in  equity  brought  to  abate  a  public  nui- 
sance. The  statutory  direction  that  an  injunction  issue  at  the  commence- 
ment of  tlie  action  is  not  to  be  construed  as  dispensing  with  such 
prelinnnary  proof  as  is  necessary  to  authorize  an  injunction  pending 
the  suit.  The  court  is  not  to  issue  an  injunction  siraplj'  because  one  is 
asked,  or  because  the  charge  is  made  that  a  common  nuisance  is  main- 
tained in  violation  of  law.  The  statute  leaves  the  court  at  liberty  to 
give  effect  to  the  principle  that  an  injunction  will  not  be  granted 
to  restrain  a  nuisance,  except  upon  clear  and  satisfactory  evidence  that 
one  exists.  Here  the  fact  to  be  ascertained  was,  not  whether  a  place, 
kept  and  maintained  for  purposes  forbidden  by  the  statute,  was,  per  se, 
a  nuisance  —  that  fact  being  conclusively  determined  by  the  statute 
itself — but  whether  the  place  in  question  was  so  kept  and  maintained. 

If  the  proof  upon  that  point  is  not  full  or  sufficient,  the  court  can 
refuse  an  injunction,  or  postpone  action  until  the  State  first  obtains  the 


796  MUGLER   V.    KANSAS.  [CHAP.  V. 

verdict  of  a  jury  in  her  favor.  In  this  case,  it  cannot  be  denied  that 
the  defendants  kept  and  maintained  a  place  tliat  is  within  the  statu tory 
definition  of  a  common  nuisance.  Their  petition  for  the  removal  of  the 
cause  from  the  State  court,  and  their  answer  to  the  bill,  admitted  every 
fact  necessary  to  maintain  this  suit,  if  the  statute,  under  which  it  was 
brought,  was  constitutional. 

Touching  the  provision  that  in  prosecutions,  by  indictment  or  other- 
wise, the  State  need  not,  in  the  first  instance,  prove  that  the  defendant 
has  not  the  permit  required  by  the  statute,  we  may  remark  that,  if  it 
has  any  application  to  a  proceeding  like  this,  it  does  not  deprive  him  of 
the  presumption  that  he  is  innocent  of  any  violation  of  law.  It  is  only 
a  declaration  that  when  the  State  has  proven  that  the  place  described 
is  kept  and  maintained  for  the  manufacture  or  sale  of  intoxicating 
liquors  —  such  manufacture  or  sale  being  unlawful  except  for  specified 
purposes,  and  then  only  under  a  permit  — the  prosecution  need  not 
prove  a  negative,  namel}',  that  the  defendant  has  not  the  required 
license  or  permit.  If  the  defendant  has  such  license  or  permit,  he  can 
easily  produce  it,  and  thus  overthrow  the  /Jj'iVna  facie  case  established 
by  the  State. 

A  portion  of  the  argument  in  behalf  of  the  defendants  is  to  the  effect 
that  the  statutes  of  Kansas  forbid  the  manufacture  of  intoxicating 
liquors  to  be  exported,  or  to  be  carried  to  other  States,  and,  upon  that 
ground,  are  repugnant  to  the  clause  of  the  Constitution  of  the  United 
States,  giving  Congress  power  to  regulate  commerce  with  foieign 
nations  and  among  the  several  States.  We  need  only  say,  upon  this 
point,  that  there  is  no  intimation  in  the  record  that  the  beer  which  the 
respective  defendants  manufactured  was  intended  to  be  carried  out  of 
the  State  or  to  foreign  countries.  And,  without  expressing  an  opinion 
as  to  whether  such  facts  would  have  constituted  a  good  defence,  we 
observe  that  it  will  be  time  enough  to  decide  a  case  of  that  character 
when  it  shall  come  before  us.^ 

For  the  reasons  stated,  tve  are  of  opinion  that  the  judgments  of  the 
Supreme  Court  of  Kansas  have  not  denied  to  3fugle.r,  the  plaintiff  in 
error,  any  right,  privilege,  or  immunity  secured  to  him  by  the  Consti- 
tution of  the  United  States,  and  its  judgment,  in  each  case,  is,  accord- 
ingly, affirmed.  We  are,  also,  of  opinion  that  the  Circuit  Court  of 
the  United  States  erred  in  dismissing  the  bill  of  the  State  against 
Ziebold  &  Hagelin.  The  decree  in  that  case  is  reversed,  and  the 
cause  remanded,  loith  directions  to  enter  a  decree  granting  to  the  State 
such  relief  as  the  Act  of  March  7,  1885,  authorizes.^ 

[Field,  J.,  gave  a  dissenting  opinion.] 

1  Held,  that  it  would  not,  in  Kidd  v.  Pearson,  128  U.  S.  1  (1888).  —Ed. 

2  As  to  the  relation  between  this  extensive  power  of  the  States  and  the  Constitution 
and  laws  of  the  United  States,  see  Bmvman  v.  Chic.  Sf^  N.  W.  Ri/.  Co.,  125  U.  S.  465 
(1888)  ;  Leisi/  v.  Hardin,  135  U.  S.  100  (1890),  and  In  re  Rahrer,  140  U.  S.  545 
(1891).  — Ed. 


CHAP,  v.]  SMITH  V.    ALABAMA.  797 

In  /Smith  v.  Alabama,  124  U.  S.  465  (1888),  on  error  to  tlie  Supreme 
Court  of  Alabama,  the  validity  was  in  question  of  a  statute  of  that 
Stiite  requiring  all  locomotive  engineers  to  be  examined  and  licensed  by 
a  State  Court.  In  holding  this  valid,  Matthews,  J.,  for  the  court,  said  : 
"  The  grant  of  power  to  Congress  in  the  Constitution  to  regulate  com-  /;itu.ttv< 
merce  with  foreign  nations  and  among  the  several  States,  it  is  conceded,    ,  J 

is  paramount  over  all  legislative  powers  which,  in  consequence  of  not  v  ^ 

having  been  granted  to  Congress,  are  reserved  to  the  States.  It  follows  Qnvi?/UA3-  * 
that  any  legislation  of  a  State,  although  in  pursuance  of  an  acknowl-  ^  ^aaJL^Xl 
edged  power  reserved  to  it,  which  conflicts  with  the  actual  exercise  of  \\ 

the  power  of  Congress  over  the  subject  of  commerce,  must  give  way  be-  -tYMVO^  v^  « 
fore  the  supremacy  of  the  national   authority.     As  the  regulation  of     «       V    ' 
commerce  may  consist  in  abstaining  from  prescribing  positive  rules  for  .    , 

its  conduct,  it  cannot  always  be  said  that  the  power  to  regulate  is  dor-  u^x^aXMi-U  v^ 
mant  because  not  affirmatively  exercised.  And  when  it  is  manifest  that  f^  .^^^  (^' 
Congress  intends  to  leave  that  commerce,  which  is  subject  to  its  juris-  \  j^  .  0  j. 
diction,  free  and  unfettered  by  any  positive  regulations,  such  intention  -i/-^"^ 
would  be  contravened  by  State  laws  operating  as  regulations  of  com-  CCv^X  Ir^^' 
merce  as  much  as  though  these  had  been  expressly  forbidden.     In  such  n     /  f-j- 

cases,  the  existence  of  the  power  to  regulate  commerce  in  Congress  has  '  "^^    ^  ' 
been  construed  to  be  not  only  paramount  but  exclusive,  so  as  to  with-  ^  (jXcJ'^^^'^ 
draw  the  subject  as  the  basis  of  legislation  altogether  from  the  States.     "  -     ,      ^ 
.  .   .  But  the  provisions  on  the  subject  contained  in  the  statute  of  Ala-  M^^^^^-iAA-A/^ 
bama  under  consideration  are  not  regulations  of  interstate  commerce.   ^^i^^i^kM  i^^' 
It  is  a  misnomer  to  call  them  such.     Considered  in  tliemselves,  they  are  +    lA 

parts  of  that  body  of  the  local  law  which,  as  we  have  already  seen,  . 

properly  goyerns  the  regulation  between  carriers  of  passengers  and  '^1^'^'^^ 
merchandise  and  the  public  who  employ  them,  which  are  not  misplaced   iLZjuMifJ^  ^ 
until  they  come  in  conflict  with    express    enactments  of  Congress  in        , 
the  exercise  of  its  power  over  commerce,  and  which,  until  so  displaced,  ^  '    A 

according  to  the  evident  intention  of  Congress,  remain  as  the  law  gov-  "WvV  c-1  vvaAJ 
erning  carriers  in  the  discharge  of  their  obligations,  whether  engaged  in       r.  l^    iLjc\'\ 
the  purely  internal  commerce  of  the  State  or  in  commerce  among  the 
States."  1  .nv\tvU   L<^^ 

1  A  like  result  v^as  reached  in  Nashville,  ^-c.  Railivay  v.  Ala.,  128  U.  S.  96  (1888),  , 

in  considering  another  statute  of  the  same  State  requiring,  in  the  case  of  various  classes  ji^LiuoOi^-^*^ 
of  railroad  employees,  an  examination  and  a  certificate  of  fitness,  as  regards  color-  I       if 

blindness  and  defective  vision,  from  a  State  board  of  medical  men.     See  Jamieson  v.  (^^  a.^<"  *^ 

Ind.  Nat.  Gas  Co.,  128  lud.  555.  — Ed.  Cfrv^MtV^ 


798  CKOWLEY   V.    CIIRISTENSEN.  [ciIAP.  V. 


CROWLEY   V.   CHRISTENSEN. 
Supreme  Court  of  the  United  States.     1890. 

[137  U.  S.  86.] 

This  was  an  appeal  from  an  order  of  the  Circuit  Court  of  the  United 
States  for  the  ISorthern  District  of  California  discharging,  on  habeas 
corpus,  the  petitioner  for  the  writ,  the  appellee  here,  from  the  custody 
of  the  chief  of  police  of  the  city  and  county  of  San  Francisco,  by  whom 
he  was  held  under  a  warrant  of  arrest  issued  by  tlie  Police  Court  of  that 
municipality,  upon  a  charge  of  having  engaged  in  and  carried  on  in 
that  city  the  business  of  selling  spirituous,  malt,  and  fermented  liquors 
and  wines  in  less  quantities  than  one  quart,  without  the  license  required 
by  the  ordinance  of  the  city  and  county.  Th^  ordinance  referred  to 
provided  that  every  person  who  sold  such  liquors  or  wines  in  quantities 
less  than  one  quart  should  be  designated  as  "  a  retail  liquor-dealer  "  and 
as  "a  grocer  and  retail  liquor-dealer,"  and  that  no  license  as  such 
liquor-dealer,  after  January  1,  1886,  "shall  be  issued  by  the  collector 
of  licenses,  unless  the  person  desiring  the  same  shall  have  obtained  the 
written  consent  of  a  majority  of  the  Board  of  Police  Commissioners  of 
the  city  and  county  of  San  Francisco  to  carry  on  or  conduct  said  busi- 
ness ;  but,  in  case  of  refusal  of  such  consent,  upon  application,  said 
Board  of  Police  Commissioners  shall  grant  the  same  upon  the  written 
recommendation  of  not  less  than  twelve  citizens  of  San  Francisco  own- 
ing real  estate  in  the  block  or  square  in  which  said  business  of  retail 
liquor-dealer  or  grocery  and  retail  liquor-dealer  is  to  be  carried  on ;  " 
and  that  such  license  should  be  issued  for  a  period  of  only  three  months. 
The  ordinance  further  declared  that  any  person  violating  this  provision 
should  be  deemed  guilty  of  a  misdemeanor. 

The  Constitution  of  California  provides,  in  the  eleventh  section  of 
Article  11,  that  "  any  county,  city,  town,  or  township  may  make  and 
enforce  within  its  limits  all  such  local,  police,  sanitary,  and  other  regu- 
lations as  are  not  in  conflict  with  general  laws." 

The  petitioner  had,  previously  to  June  10,  1889,  carried  on  the  busi- 
ness of  retail  liquor-dealer  in  San  Francisco  for  some  years,  imder 
licenses  from  the  Board  of  Police  Commissioners,  but  his  last  license 
was  to  expire  on  the  17th  of  that  month.  Previously  to  its  expiration 
he  was  informed  by  the  Police  Commissioners  that  they  had  withdrawn 
their  consent  to  the  further  issue  of  a  license  to  him.  He  afterwards 
tendered  to  the  collector  of  license  fees,  through  which  officer  it  was  the 
practice  of  the  Board  to  issue  the  licenses,  the  sum  required  for  a  new 
license,  but  the  tender  was  not  accepted,  and  his  application  for  a  new 
license  was  refused.  He  then  applied  to  the  Police  Commissioners  for 
a  hearing  before  them  on  the  question  of  revoking  their  consent  to  the 
issue  of  a  further  license  to  him.  Such  hearing  was  accorded  to  him, 
and  the  time  fixed  for  it  was  the  24th  of  June.     But,  before  any  hearing 


CHAP,  v.]  CROWLEY   V.    CHRISTENSEN.  799 

was  had,  he  was  arrested  upon  a  warrant  of  the  Police  Court  upon  the 
charge  of  carrying  on  the  business  of  a  retail  liquor-dealer  without  a 
license.  He  then  obtained  from  the  Supreme  Court  of  the  State  a  writ 
of  habeas  coriyus  to  be  discharged  from  the  arrest,  but  that  court,  on 
the  2d  of  August,  1890,  held  the  ordinance  valid  and  remanded  him  to 
the  custody  of  the  chief  of  police.  He  then  applied  for  the  allowance  of 
,  an  appeal  from  this  order  to  the  Supreme  Court  of  the  United  States, 

but  it  was  refused  by  the  Chief  Justice  of  the  State  Court,  and  the 
Associate  Justice  of  the  Supreme  Court  of  the  United  States  assigned 
to  the  circuit,  who  could  have  allowed  the  appeal,  was  absent  from  the 
State.  On  the  7th  of  August  following  a  new  complaint  was  made 
against  the  petitioner,  charging  him  with  unlawfully  engaging  in  and 
carrying  on  in  San  Francisco  the  business  of  a  retail  liquor-dealer  with- 
out a  license  under  the  ordinance  of  the  city  and  county.  Upon  this 
complaint  a  warrant  was  issued  under  which  he  was  arrested.  He  tliere- 
upon  applied  to  the  Circuit  Court  of  the  United  States  for  a  writ  of 
habeas  corpus,  which  was  issued. 

In  return  to  the  writ,  the  chief  of  police,  the  appellant  here,  stated 
that  he  held  the  petitioner  under  the  warrant  mentioned  by  the  petitioner 
and  several  other  warrants  issued  by  the  Police  Court  of  the  city  and 
county,  upon  different  charges,  made  at  different  times,  of  his  conduct-  yU  ^    '■^  l^u^ 
ing  and  carrying  on  the  business  of  a  retail  liquor-dealer  in  San  Fran-  ^^^ 
Cisco  without  a  license,  as  required  by  the  ordinance  of  the  citj-  and   j^yf\{,,jMi^-C 
county.     He  also  stated,  among  other  things,  that  a  further  license  to     /  ^  y 

the  petitioner  was  refused  by  the  Police  Commissioners,  because  theyTiu>^  ^ 
had  reason  to  believe  that  the  business  was  carried  on  by  him  under  his   'c\yO  A^iV^\ 
existing  license  in  such  a  manner  as  to  be  offensive,  and  violative  of  the  (j    _^ 

criminal  laws  of  the  State  and  of  the  rights  of  others.     In  support  of  AA^<y^'^''^^ 
this  charge  it  was  averred  that  in  that  business  the  petitioner  was  assisted^  ^^   JU/U^ 
b}'  one  whom  he  represented  and  claimed  to  be  his  wife,  and  that  she   _<.  '      9 
had  on  one  occasion  stolen  one  hundred  and  sixt}'  dollars  from  a  person  ' 
who  visited  his  saloon,  and  been  convicted  of  the  offence  in  the  Superior 
Court  of  the  city  and  county,  and  sentenced  to  be  imprisoned  for  one 
j'ear,  and  on  another  occasion  had  stolen  a  watch  and  a  scarf-pin  from 
a  person  at  the  saloon,  and  was  held  to  answer  for  the  charge.     It  was 
also  averred  that  there  were  more  than  sixteen  citizens  of  San  Francisco  /LmJg.  ga^ 
owning  real  estate  in  the  block  on  which  the  petitioner  carried  on  his  A^ 
business.     It  did  not  appear  that  on  the  hearing  of  the  application  any  jLuJImI Jjti/' 
proof  was  offered  of  the  facts  alleged  either  in  the  petition  or  in  the    ^         W    , 
return.     The  case  was  heard  upon  exceptions  or  demurrer  to  the  return.  {\4JLci  Oy^'^^'^ 
To  that  part  respecting  the  alleged  larceny  by  the  wife  and  her  convic-  /     -fjU 

tion,  the  demurrer  was  on  the  ground  that  the  return  also  showed  that /^'^-^y^ ' 
an  appeal  had  been  taken  from  the  conviction,  which  was  then  pending,   CarttJla^uM 
and  that  she  might  be  acquitted  of  the  offence  charged.  /j 

Several  objections  were  urged  by  the  petitioner  to  the  ordinance.    Some   /y(i,4uJi^ 
of  them  were  of  a  technical  character,  and  could  not  be  considered.    Of  t4    4 

the  others  only  one  was  noticed,  which  was,  that  by  it  "the  State  of     j^^ 


800  CROWLEY   V.    CHRISTENSEN.  [CIIAP,  V. 

California,  by  its  officers,  denies  to  him  the  equal  protection  of  the  laws, 
and  makes  and  enforces  against  him  a  law  which  abridges  his  privileges 
and  immunities  as  a  citizen  of  the  United  States,"  contrary  to  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States. 

The  court  held  that  the  ordinance  made  the  business  of  the  petitioner 
depend  upon  the  arbitrar\-  will  of  others,  and  in  that  respect  denied  to 
him  the  equal  protection  of  the  laws,  and  accordingly  ordered  his  dis- 
charge. 43  Fed.  Rep.  2-i3.  From  that  order  the  case  was  brought  to 
this  court  b}'  appeal  under  §§  763  and  7G4  of  the  Revised  Statutes,  this 
latter  section  as  amended  by  the  Act  of  March  3,  1885,  c.  353,  23  Stat. 
437. 

3fr.  Davis  LouderbacJc  and  Mr.  J.  D.  Page^  for  appellant. 

Mr.  Alfred  Clarke  and  Mr.  Joseph  D.  Redding,  for  appellee. 

Mr.  Justice  Field,  after  stating  the  case  as  above,  delivered  the 
opinion  of  the  court. 

It  is  undoubtedly  true  that  it  is  the  right  of  every  citizen  of  the  United 
States  to  pursue  any  lawful  trade  or  business,  under  such  restrictions  as 
are  imposed  upon  all  persons  of  the  same  age,  sex,  and  condition.  But 
the  possession  and  enjoyment  of  all  rights  are  subject  to  such  reason- 
able conditions  as  may  be  deemed  b}-  the  governing  authority  of  the 
country  essential  to  the  safety,  health,  peace,  good  order,  and  morals  of 
the  communit}'.  Even  liberty  itself,  the  greatest  of  all  rights,  is  not 
unrestricted  license  to  act  according  to  one's  own  will.  It  is  only  free- 
dom from  restraint  under  conditions  essential  to  the  equal  enjoyment  of 
the  same  right  by  others.  It  is  then  liberty  regulated  by  law.  The 
right  to  acquire,  enjoy,  and  dispose  of  property  is  declared  in  the  Con- 
stitutions of  several  States  to  be  one  of  the  inalienable  rights  of  man. 
But  this  declaration  is  not  held  to  preclude  the  legislature  of  an}-  State 
from  passing  laws  respecting  the  acquisition,  enjoyment,  and  disposition 
of  property.  "What  contracts  respecting  its  acquisition  and  disposition 
shall  be  valid  and  what  void  or  voidable  ;  \vhen  the}'  shall  be  in  writing 
and  when  the}'  may  be  made  orall}' ;  and  b}'  what  instruments  it  may  be 
conveyed  or  mortgaged  are  subjects  of  constant  legislation.  And  as  to 
the  enjoyment  of  property,  the  rule  is  general  that  it  must  be  accom- 
panied with  such  limitations  as  will  not  impair  the  equal  enjoyment  by 
others  of  their  property.  Sic  idere  tuo  ut  alienum  non  Icedas  is  a 
maxim  of  universal  application. 

For  the  pursuit  of  any  lawful  trade  or  business,  the  law  imposes  simi- 
lar conditions.  Regulations  respecting  them  are  almost  infinite,  varying 
with  the  nature  of  the  business.  Some  occupations  by  the  noise  made 
in  their  pursuit,  some  by  the  odors  they  engender,  and  some  by  the  dan- 
gers  accompanying  them,  require  regulations  as  to  the  locality  in  which 
they  shall  be  conducted.  Some  by  the  dangerous  character  of  the 
articles  used,  manufactured,  or  sold  require,  also,  special  qualifications 
in  the  parties  permitted  to  use,  manufacture,  or  sell  them.  All  this.,  is 
but  common  knowledge,  and  would  hardly  be  mentioned  were  it  not  for 
the  position  often  taken,  and  vehemently  pressed,  that  there  is  something 


CHAP,  v.]  CROWLEY  V.   CHRISTENSEN.  801 

wrong  in  principle  and  objectionable  in  similar  restrictions  when  applied 
to  the  business  of  selling  by  retail,  in  small  quantities,  spirituous  and 
intoxicating  liquors.  It  is  urged  tliat,  as  the  liquors  arc  used  as  a  bev- 
erage, and  the  injury  following  them,  if  taken  in  excess,  is  voluntarily 
inflicted  and  is  confined  to  the  party  offending,  their  sale  should  be 
w ithout  restrictions,  the  contention  being  that  what  a  man  shall  drink , 
e qually  with  w4iat  he  shall  eat,  is  not  properly  matter  for  legislatio n . 

There  is  in  this  position  an  assumption  of  a  fact  which  does  not  exist, 
that  when  the  liquors  are  taken  in  excess  the  injuries  are  confined  to  tlic 
party  ollending.  The  injury,  it  is  true,  first  falls  upon  him  in  his  health, 
which  the  habit  undermines  ;  in  his  morals,  which  it  weakens  ;  and  in 
the  self-abasement  which  it  creates.  But,  as  it  leads  to  neglect  of  busi- 
ness and  waste  of  property  and  general  demoralization,  it  affects  those 
who  are  immediately  connected  with  and  dependent  upon  him.  By  the 
general  concurrence  of  opinion  of  every  civilized  and  Christian  com- 
munity, there  are  few  sources  of  crime  and  misery  to  society  equal  to 
the  dram  shop,  where  intoxicating  liquors,  in  small  quantities,  to  be 
drunk  at  the  time,  are  sold  indiscriminately  to  all  parties  applying. 
The  statistics  of  every  State  show  a  greater  amount  of  crime  and  misery 
attributable  to  the  use  of  ardent  spirits  obtained  at  these  retail  liquor 
saloons  than  to  an}'  other  source.  Tlie  sale  of  such  liquors  in  this  way 
has  therefore  been,  at  all  times,  by  the  courts  of  every  State,  considered 
as  the  proper  subject  of  legislative  regul ation .  Not  only  may  a  license 
be  exacted  from  the  keeper  of  the  saloon  before  a  glass  of  his  liq u or s 
can  be  thus  disposed  of,  but  restrictions  may  be  imi)osed  as  to  the  class 
of  persons  to  whom  they  may  be  sold,  and  the  hours  of  the  day  and  the 
da^s  of  the  week  on  which  the  saloons  may  be  opened.  Their  sale  in 
that  form  may  be  absolutely  prohibited.  It  is  a  question  of  public  ex- 
pediency and  public  morality,  and  not  of  Federal  law.  The  police 
power  of  the  State  is  fully  competent  to  regulate  the  business  —  to 
mitigate  its  evils  or  to  suppress  it  entirely.  There  is  no  inherent  right 
in  a  citizen  to  thus  sell  intoxicating  liquors  by  retail ;  it  is  not  a  privi- 
lege of  a  citizen  of  the  State  or  of  a  citizen  of  the  United  States.  As 
it  is  a  business  attended  with  danger  to  the  community  it  may,  as  already 
said,  be  entirely  prohibited,  or  be  permitted  under  such  conditions  as 
will  limit  to  the  utmost  its  evils.  The  manner  and  extent  of  regulation 
rest  in  the  discretion  of  the  governing  authority.  That  authority  may 
vest  in  such  officers  as  it  may  deem  proper  the  power  of  passing  upon 
applications  for  permission  to  carry  it  on,  and  to  issue  licenses  for  that 
purpose.  It  is  a  matter  of  legislative  will  only.  As  in  many  other 
cases,  the  officers  may  not  always  exercise  the  power  conferred  upon 
them  with  wisdom  or  justice  to  the  parties  affected.  But  that  is  a  mat- 
ter  which  does  not  affect  the  authority  of  the  State  ;  nor  is  it  one  which 
can  be  brought  under  the  cognizance  of  the  cqiurts  of  the  United 
States. 

The  Constitution  of  California  vests  in  the  municipality  of  the  city 
and  county  of  San  Francisco  the  right  to  make  "  all  such  local,  police, 
VOL.  I.  —  51 


802  CROWLEY   V.    CHRISTENSEN.  [CHAP.  V. 

sanitaiy,  and  other  regulations  as  are  not  in  conflict  with  general  laws." 
The  Supreme  Court  of  the  State  has  decided  that  the  ordinance  in  ques- 
tion, under  which  the  petitioner  was  arrested  and^TsTieTcr  inTmstody,  was 
thus  authorized  and  is  valid.  Tliat  decision  is  binding  upon  us  unless 
some  inhibition  of  the  Constitution  or  of  a  law  of  the  United  States  is 
violated  by  it.  We  do  not  perceive  that  there  is  any  such  violation. 
The  learned  Circuit  Judge  ^  saw  in  the  provisions  of  the  ordinance  em- 
powering the  police  commissioners  to  grant  or  refuse  their  assent  to  the 
a[)plication  of  the  petitioner  for  a  license,  or  failing  to  obtain  their 
assent  upon  application,  requiring  it  to  be  given  upon  the  recommenda- 
tion of  twelve  citizens  owning  real  estate  in  the  block  or  square  in 
which  his  business  as  a  retail  dealer  in  liquors  was  to  be  carried  on,  the 
delegation  of  arbitrary  discretion  to  the  ])olice  commissioners,  and  to 
real  estate  owners  of  the  block,  which  might  be  and  was  exercised  to 
deprive  the  petitioner  of  the  equal  protection  of  the  laws.  And  he 
considers  that  his  view  in  this  respect  is  supported  b}'  the  decision  in 
Tick  Wo  V.  iro2)kins,  118  U.  S.  356. 

In  that  case  it  appeared  that  an  ordinance  of  the  citv  and  county  of 
San  Francisco  passed  in  July,  1880,  declared  that  it  should  be  unlawful 
after  its  passage  "for  any  person  or  persons  to  establish,  maintain,  or 
carr3'  on  a  laundr}'  within  the  corporate  limits  of  the  city  and  county  of 
San  Francisco  without  having  first  obtained  the  consent  of  the  board  of 
supervisors,  except  the  same  be  located  in  a  building  constructed  either 
of  brick  or  stone."  The  ordinance  did  not  limit  the  power  of  the  super- 
A'isors  to  grant  such  consent,  where  the  business  was  carried  on  in 
wooden  buildings.  It  left  that  matter  to  the  arbitrary  discretion  of  the 
board.  Under  the  ordinance  the  consent  of  the  supervisors  was  refused 
to  the  petitioner  to  carry  on  the  laundry  business  in  wooden  buildings, 
where  it  had  been  conducted  b}-  him  for  over  twenty  years.  He  had,  at 
the  time,  a  certificate  from  the  board  of  fire  wardens  that  his  premises 
had  been  inspected  by  them,  and  upon  such  inspection  they  had  found 
all  proper  arrangements  for  carrying  on  the  business,  and  that  all  proper 
precautions  had  been  taken  to  comply  with  the  provisions  of  the  ordi- 
nance defining  the  fire  limits  of  the  city  and  county  ;  and  also  a  certifi- 
cate from  the  health  officer  that  the  premises  had  been  inspected  by  him 
and  were  properly  and  sufficiently  drained,  and  that  all  proper  arrange- 
ments for  carrying  on  the  business  of  a  laundry  without  injury  to  the 
sanitary  conditions  of  the  neighborhood  had  been  complied  with.  The 
limits  of  the  city  and  county  embraced  a  territory  some  ten  miles  wide 
by  fifteen  or  more  in  length,  much  of  it  being  occupied  at  the  time, 
as  stated  by  the  Circuit  Judge,  as  farming  and  pasture  lands,  and 
much  of  it  being  unoccupied  sand  banks,  in  many  places  without 
buildings  within  a  quarter  or  half  a  mile  of  each  other.  It  appeared 
also  that,  in  the  practical  administration  of  the  ordinance,  consent  was 
given  by  the  board  of  supervisors  to  some  parties  to  carry  on  the  laun- 

*  For  his  opinion,  see  In  re  Christensen,  43  Fed.  Rep.  243.  —  Ed. 


CHAP,  v.]  CROWLEY   V.    CIIRISTENSEN  803 

dry  business  in  buildings  other  than  tliose  of  brick  or  stone,  but  that  all 
applications  coming  from  the  Chinese,  of  whom  the  petitioner  was  one^ 
to  carry  on  the  business  in  such  buildings  were  refused.  This  court  said 
of  the  ordinance  :  "  It  allows  without  restriction  the  use  for  such  pur- 
poses of  buildings  of  brick  or  stone  ;  but,  as  to  wooden  buildings, 
constituting  nearly  all  those  in  previous  use,  it  divides  the  owners  or 
occupants  into  two  classes,  not  having  respect  to  their  personal  character 
and  qualifications  for  the  business,  nor  the  situation  and  nature  and 
adaptation  of  the  buildings  themselves,  but  merely  by  an  arbitrary  line, 
on  one  side  of  which  are  those  who  are  permitted  to  pursue  their  indus- 
try by  the  mere  will  and  consent  of  the  supervisors,  and,  on  the  other, 
those  from  whom  that  consent  is  withheld,  at  their  mere  will  and  pleas- 
ure. A.nd  both  classes  are  alike  only  in  this,  that  they  are  tenants  at 
will,  under  the  supervisors,  of  their  means  of  living.  The  ordinance, 
therefore,  also  differs  from  the  not  unusual  case,  where  discretion  is 
lodged  by  law  in  public  officers  or  bodies  to  grant  or  withhold  licenses 
to  keep  taverns,  or  places  for  the  sale  of  spirituous  liquors  and  the  like, 
when  one  of  the  conditions  is  that  the  applicant  shall  be  a  fit  person  for 
the  exercise  of  the  ijrivilege,  because  in  such  cases  the  fact  of  fitness  is 
submitted  to  the  judgment  of  the  officer,  and  calls  for  the  exercise  of  a 
discretion  of  a  judicial  nature." 

It  will  thus  be  seen  that  that  case  was  essentiall}'  different  from  the 
one  now  under  consideration,  the  ordinance  there  held  invalid,  vesting 
uncontrolled  discretion  in  the  board  of  supervisors  with  reference  to  a 
business  harmless  in  itself  and  useful  to  the  community  ;  and  the  dis- 
cretion appearing  to  have  been  exercised  for  the  express  purpose  of 
depriving  the  petitioner  of  a  privilege  that  was  extended  to  others.  In 
the  present  case  the  business  is  not  one  that  any  person  is  permitted  to 
carr}'  on  without  a  license,  but  one  that  may  be  entirel}'  prohibited  or 
subjected  to  such  restrictions  as  the  governing  authority  of  the  cit}'  ma}' 
prescribe. 

It  would  seem  that  some  stress  is  placed  upon  the  allegation  of  the 
petitioner  that  there  were  not  twelve  persons  owners  of  real  property  in 
the  block  where  the  business  was  to  be  carried  on.  This  allegation  is 
denied  in  the  return,  which  alleges  that  there  were  more  than  sixteen 
such  propert}'  holders.  As  the  case  was  heard  upon  exceptions  or  de- 
murrer to  the  return,  its  averments  must  be  taken  as  true.  At  common 
law  no  evidence  was  necessary-  to  support  the  return.  It  was  deemed  to 
import  verity  until  impeached.  Ilurd  on  Habeas  Corpus,  book  2,  c.  3, 
§§  8,  9,  and  10  ;  Church  on  Same,  §  122.  And  tliis  rule  is  not  changed 
by  any  statute  of  the  United  States.  It  must,  thei-efore,  be  considered 
as  a  fact  in  the  case  that  there  were  more  tlian  sixteen  owners  of  real 
estate  in  the  block.  But  if  the  fact  were  otherwise,  and  there  was  not 
the  number  stated  in  the  petition,  the  result  would  not  be  affected.  If 
there  were  no  property  holders  in  the  block,  the  d^scn^^tionjm'jiujjioritv 
would  be  exercised  finally  by  the  police  commissioners,  and  their  refusal 
to  grant  the  license  is  not  a  matter  for  review  by  this  court,  as  it  violates 


804  BUDD  V.    NEW  YOHK.  [CHAP.  V, 

no  principle  of  Federal  law.  We  however  find  in  the  return  a  statement 
which  would  fully  justify  the  action  of  the  commissioners.  It  is  averred 
that  in  the  conduct  of  the  liquor  business  the  petitioner  was  assisted  In- 
his  wile,  and  that  she  was  twice  arrested  for  larcenies  committed  from 
persons  visiting  his  saloon,  and  in  one  case  convicted  of  the  offence  and 
sentenced  to  be  imprisoned,  and  in  the  other  held  to  answer.  These 
larcenies  alone  were  a  sufficient  indication  of  the  character  of  the  place 
in  which  the  business  was  conducted,  for  the  exercise  of  the  discre- 
tion of  the  police  commissioners  in  refusing  a  further  license  to  the 
petitioner. 

The  order  discharging  the  petitioner  must  be 

Reversed,  and  the  cause  remanded  with  directions  to  take  further 
proceedings  in  conformity  ivith  this  opinion,  and  it  is  so  ordered.^ 


v] 


1.1/juWa^vc  JucuJ  *^^      BUDD  V.   NEW  YORK.         ^       ^ 
i4^  Cmiic<U  W.M    NEW   YORK   EX   kel.    ANNAN   v.    WALSH.         T^  -JtalA 
^l^^^^^ctdcc^^  NEW   YORK   EX   BEL.   PINTO   ...   WALSH.  .^^  £;:^.:i^ 

.  /^-   Supreme  Court  of  the  United  States.     1892.        .a     ,^aA^  k 

[143  t^.  5.  517.] 2  -J^^rjM^t    ^ 

^f'l  It  [Error  to  the  Superior  Court'  of  BufTalo,  New  York,  and  to  the  (x^^Jjxfii, 

yfMui^trL  Supreme  Court  of  New  York.]  r^^ '^ 

iLmoAMotiA  ^^'-  ^^^yo^"*^  F.  Tracy  and  Mr.  William  N.  Dykman^  for  Annan 
-^  '    d/     ''^"^^  Pinto,  plaintiffs  in  error.    3fr.  Spencer  Clinton,  for  Budd,  plaintiff 
^'^*^^^^^^^"' in  error.     Mr.  J.  A.  Hyland,  for  the  defendants  in  error  in  644  and 
Jav^  ^-^     64.5.     Mr.  George  T.  Quinhy  filed  a  brief  for  the  defendants  in  error 

n  in  719  [Buddy.  iV.  T.]. 

lU,tuuif^,       ^^^    Justice    Blatchford,    after   stating    the   case,   delivered   the 
({.    OK  VLt     opinion  of  the  coui't. 
zt   ■  ,  d  The  main  question  involved  in  these  cases  is  whether  this  court  will 

^     adhere  to  its  decision  in  Minui  v.  Illinois.,  94  U.  S.  113. 

Urupu.  V^lU.    The  Court  of  Appeals  of  New  York,  in  Feoi^le  v.  Budd,  117  N.  Y. 

-f'tudx,       ■*'  '"^^^^  *^^^*  chapter  581  of  the  laws  of  1888  did  not  violate  the  consti- 

/      tutional  guarantee  protecting  private  property,    but  was  a  legitimate 

.o<<.p''^^p^  exercise  of  the  police  power  of  the  State  over  a  business  aflTected  with 

/^jijULX  *i.       a  public  interest.     In  regard  to  the  indictment  against  Budd,  it  held 

Ifi..^JiijtX  ^  See  Ex  parte  Sing  Lee,  96  Cal.  3.54  (1892).     Compare  Chic.  Ri/.  Co.  v.  Minn.,  ante, 

i'         i  jj  P-  6G0,  and  note,  p.  673.     In  Sharp  v.  Wakefield,  [1891]  Appeal  Cases,  173, 182,  a  case 

lA/CA.**   **^  relating  to  licenses  for  selling  intoxicating  liquors,  Lono  Bramwell  said:  "Houses 

~       tS    k  °^  public  entertainment  and  for  the  sale  of  drink  have  been  in  this  country,  and  in 

'-  '-'   H^'vP  iTianv  others,  the  subject  of  regulation  for  police  purposes ;  not  for  what  one  may  call 

-♦  economic  purposes,  like  the  fixing  of  the  price  of  bread  or  the  wages  of  labor,  but  for 

"^^^  ""^^  the  maintenance  of  order." — Ed. 
\}utJ\M  tv  ^tjL       ^  The  facts  are  sufficiently  given  in  the  opinion.  —  Ed. 


CHAP.  V.l  BUDD   V.   NEW  YORK.  805       i?    , 

that  the  charge  of  exacting  more  than  the  statute  rate  for  elevating  ~'*^^  ^*^ 
was  proved,  and  that  as  to  the  alleged  overcharge  for  shovelling,  it    aX   <X  v^oii 
appeared   that  the  carrier  was  compelled   to  pay  $4  for   each    lUOO    (1  <^.^  L(».;^ 
bushels  of  grain,  which  was  the  charge  of  the  shovellers'  union,  by    ^      .    ^^^ 
which  the  work  was  performed,  and  that  the  union  paid  the  elevator,         ^ 
for  the  use  of  the  hitter's  steam  shovel,  $1.75  for  each  1000  bushels.    ^ot^^ctCu 
The  court  held  that  there  was  no  error  in  submitting  to  the  jury  the      ^  "^   •/   ' 
question  as  to  the  overcharge  for  shovelling ;  that  the  intention  of  the    ^^^  a^ 
statute  was  to  confine  the  charge  to  the  "  actual  cost"  of  the  outside      Xj^aX m^- 
labor  required  ;  and  that  a  violation  of  the  Act  in  that  particular  was       ^   c,.aM 
proved  ;  but  that,  as  the  verdict  and  sentence  were  justified  by  proof        ^   _^  , 
of  the  overcharge  for  elevating,   even   if  the  alleged  overcharge  for     '^'^ 
shovelling   was   not  made  out,   the  ruling  of  the    Superior   Court   of  -ct<:«x  yU^^ 
Buffalo  could  not  have  prejudiced    Budd.     Of  course,  this   court,  in  ^uwicif^  , 
these  cases,  can  consider  only  the  Federal  questions  involved.  ^2^  ^    o-ui 

It  is  claimed,  on  behalf  of  Budd,  that  the  statute  of  the   State  of   yjj£,,^,t^,xx/«^ 
New  York  is  unconstitutional,  because  contrary  to  the  provisions  of     /     y-/      ^ 
section  1   of  the  Fourteenth  Amendment  to  the   Constitution   of  the       ,7 
United  States,  in  depriving  the  citizen  of  his  property  without  due     ^^^^^i/Sm 
process  of  law  ;    that  it  is    unconstitutional  in    fixing  the    maximum  C  cu^c 

charge  for  elevating,   receiving,  weighing  and  discharging  grain    by    ^^     ^ 
means  of  floating  and  stationary  elevators   and  warehouses    at   five-    /ha^yoy^^z^  ^ 
eighths  of  one  cent  a  bushel  and  in  forbidding  the  citizen  to  make  an}'  _^,^j^l^^  .,<^ 
profit  upon  the  use  of  his  property  or  labor  ;  and  that  the  police  power 
of  the  State  extends  onlj-  to  property  or  business  wliich  is  devoted  b}'    Q^'^^-'^'l 
its  owner  to  the  public,  by  a  grant  to  the  public  of  the  right  to  demand    /^^.^t^cx.*-*^ 
its  use.     It  is  claimed  on  behalf  of  Annan  and  Pinto  that  floating  and    /\x.a^:>,v\\.a^ 
stationary  elevators  in  the  port  of  New  York  are  private  property,  not  ^ 

affected  with  any  public  interest,  and  not  subject  to  the  regulation  of 
rates.  ^'jOx^^c 

"Trimming"  in  the  canal-boat,  spoken  of  in  the  statute,  is  shovel-    ^.^-ti^jUyhM 
ling  the  grain  from  one  place  to  another,  and  is  done  by  longshoremen     ,  /    , 

with  scoops  or  shovels  ;  and  "  trimming"  the  ship's  cargo  when  load-  ''■^■^■^^■^^'^^  ^7 
ing  is  stowing  it  and  securing  it  for  the  voyage.  Floating  elevators  /Uy-i^ , -ojQ  > 
are  primaril}'  boats.  Some  are  scows,  and  have  to  be  towed  from  '/  W 
place  to  place  by  steam  tugs  ;  but  the  majority  are  propellers.  When  •-  /  ^ 
the  floating  elevator  arrives  at  the  ship  and  makes  fast  alongside  of  ^/a^j-  '^ 
her,  the  canal-boat  carrying  the  grain  is  made  fast  on  the  other  side  of      /  ^ 

the  elevator.     A  long  wooden  tube,  called  "  the  leg  of  the  elevator,"    ^*^  ' 

and  spoken  of  in  the  statute,  is  lowered  from  the  tower  of  the  elevator  r{jiii,aAL  wa 
so  that  its  lower  end  enters  the  hold  of  the  canal-boat  in  the  midst  of  ^^^  AAAAjtjr\ 
the  grain.  The  "spout"  of  the  elevator  is  lowered  into  the  ship's  ...  ^  . 
hold.  The  machinery  of  the  elevator  is  then  set  in  motion,  the  grain  /oXLtLOUv*^ 
is  elevated  out  of  the  canal-boat,  received  and  weighed  in  the  elevator,  Cjr  j^^j^i^ 
and  discharged  into  the  ship.  The  grain  is  lifted  in  "  buckets  "  fastened'^O  '  .  - 
to  an  endless  belt  which  moves  up  and  down  in  the  leg  of  the  elevator,  ^tc  p^V^ 
The  lower  end  of  the  leg  is  buried  in  the  grain  so  that  the  buckets  are   ^  /-^m^u.  < 


fL^u  .^i  t^cL  0!uu^  v'Sl^'-  AA<fi^^^^4.uJi^<^^ 

806  BUDD   V.   NEW   YORK.  [CIIAP.  V. 

suDmerged  in  it.    As  the  belt  moves,  each  bucket  goes  up  full  of  grain, 
and  at  the  upper  end  of  the  leg,  in  the  elevator  tower,  empties  its  con- 
tents into  the  hopper  which  receives  the  grain.     The  operation  would 
cease  unless  the  grain  was  trimmed  or  shovelled  to  the  leg  as  fast  as 
it  is  carried  up  l\y  the  buckets.     There  is  a  gang  of  longshoremen  who 
shovel  the  grain  from  all  parts  of  the  hold  of  the  canal-boat  to  "  the 
leg  of  the  elevator,"  so  tliat  the  buckets  may  be  always  covered  with 
A     grain  at  the  lower  end  of  the  leg.     This  ^^  trimming  or  shovelling  to 
L/3-J  \r/^/-oUCu  tlie  leg  of  the  elevator,"  when  the  canal-boat  is  unloading,  is  that  part 
^      .    -jA,    of  the  work  which  the  elevator  owner  is  required  to  do  at  the  '•'•  actual 

In  the  Budd  and  Pinto  cases,  the  elevator  was  a  stationary  one  on 
land  ;  and  in  the  Annan  case,  it  was  a  floating  elevator.     In  the  Budd 
^'<'**^      case,  the  Court  of  Ap|)eals  held  that  the  words  '•'•  actual  cost,"  used  in 
'ALltu.  the  statute,  were  intended  to  exclude  any  charge  by  the  elevator  be- 

^^^  ^j^      yond  the  sum  specified,  for  the  use  of  its  machinery  in  shovelling,  and 
wr   the  ordinary  ex|)enses  of  operating  it,  and  to  confine  the  charge  to  the 
^tuiuUKA^.  actual  cost  of  the  outside  labor  required  for  trimming  and  bringing  the 
^^       grain  to  the  leg  of  the  elevator ;  and  that  the  purpose  of  the  statute 
could  be  easily  evaded  and  defeated  if  the  elevator  owner  were  per- 
mitted to  separate  the  services,  and  charge  for  the  use  of  the  steam 
^^(it^-         shovel  any  sum  which  might   be  agreed  upon   between  him  and  the 
^^A(_^  shovellers'  union,  and  thereb}-,  under  color  of  charging  for  the  use  of 
his  steam  shovel,  exact  from  the  carrier  a  sum  for  elevating  beyond 
{■  the  rate  fixed  therefor  by  the  statute. 

Sn      »€i><         The  Court  of  Appeals,  in  its  opinion   in  the  Budd  case,  considered 
^  fully  the  question  as  to  whether  the  legislature  had  power,  under  the 

•4   (fiz-xM-    Constitution  of  the  State  of  New  York,  to  prescribe  a  maximum  charge 
4/     t/i    for  elevating  grain  by  stationary  elevators,   owned  by  individuals  or 
^-     '^  corporations  who  had  appropriated  their  propcrtv  to  that  use  and  were 

"j^/ifiA  tu^AX  engaged  in  that  business;  and  it  answered  the  inquiry  in  the  aflh'ma- 
+-         tive.     It  also  reviewed  the  case  of  Mann  v.  Illinois^  94  U.  S.  113,  and 
arrived  at  the  conclusion  that  this  court  there  held  that  the  legislation 
^^^^'^^         in  question  in  that  case  was  a  lawful  exercise  of  legislative  power,  and 
,^^<_^  ^•','     did  not  infringe  that  clause  of  the  Fourteenth  Amendment  to  the  Con- 
AhJ  vtvW.     stitution    of  the   United    States    which    provides   that  no  State   shall 
"  deprive  any  person  of  life,  libertj'  or  property  without  due  process  of 
^i^^-^^^^  law  ;  "  and  that  the  legislation  in  question  in  that  case  was  similar  to, 

^j)vL>^  >■        and  not  distinguishable  in  principle  from,  the  Act  of  the  State  of  New 

Yoik. 
(^^^■^^'^'^■^^  In  regard  to  Mann  v.  Illinois,  the  Court  of  Appeals  said  that  the 

yvvTt^l^^      question  in  that  case  was  raised  by  an  individual  owning  an  elevator 

and  warehouse  in  Chicago,  erected  for,  and  in  connection  with  which  /(7'^'^ 

■v^\w>  «^       he  had  carried  on,  the  business  of  elevating  and  storing  grain,  manj-    jptMi^ 

Lvv-c,  U^iCl.      years  prior  to  the  passage  of  the  Act  in  question,  and  prior  also  to  the  ,£^u^  "^ 

\tAAk>K'  ^^option  of  the    amendment  to  the  Constitution  of  Illinois  in  1870,     ryit.  v  « 

1  ^        '•        declaring  all  elevators  and  warehouses,  where  grain  or  other  property 


CHAP,  v.]  BUDD  V.    NEW  YORK.  807 

is  stored  for  a  compensation,  to  be  public  warehouses.     The  Court  of    Y'^^-^^rr 
Appeals  then  cited  the  cases  of  Peoi^le  ex  rel.    etc.  v,  B.  &  A.  R.  li.     QjiuJt\,. 
Co.,  70  N.  Y.  569  ;  Devtholfx.  O'Reilly,  74  N.  Y.  509  ;  B.  E.   S.  R.   ^i  o^/a^ 
R.  Co.  V.  B.  S.  R.  R.   Co.,  Ill  N.  Y.   132;  and   People  v.  Khiff,  1 1 0  _^^^^^    /i^, 
N.  Y.  418,  as  cases  in  which  Munn  v.  Illinois  had  been  referred  to  by  ' 

it,  and  said  that  it  could  not  overrule  and  disregard  Munn  v.  Illinois    y^^-^*' 
without  subverting  the  principle  of  its  own  decision  in  People  v.  King,     f^o/iy^ 
and  certainl3Miot  witliont  disregarding  man}' of  its  deliberate  expres-         //V;  ^ 
sions  in  approval  of  the  principle  of  Mann  v.  Illinois. 

The  Court  of  Appeals  further  examined  the  question  whether  the 
power  of  the  legislature  to  regulate  the  charge  for  elevating  grain, 
where  the  business  was  carried  on  bj'  individuals  upon  their  own 
premises,  fell  within  the  scope  of  the  police  power,  and  whether  the 
statute  in  question  was  necessary'  for  the  public  welfare.  It  affirmed 
that,  while  no  general  power  resided  in  the  legislature  to  regulate 
private  business,  prescribe  the  conditions  under  which  it  should  be 
conducted,  fix  the  price  of  commodities  or  services,  or  interfere  with 
freedom  of  contract,  and  while  the  merchant,  manufacturer,  artisan 
and  laborer,  under  our  s^'stem  of  government,  are  left  to  pursue  and 
provide  for  their  own  interests  in  their  own  wa}',  untrammelled  b}' 
burdensome  and  restrictive  regulations,  which,  however  common  in 
rude  and  irregular  times,  are  inconsistent  with  constitutional  liberty, 
3"et  there  might  be  special  conditions  and  circumstances  which  brought 
the  business  of  elevating  grain  within  principles  which,  hy  the  common 
law  and  the  practice  of  free  governments,  justified  legislative  control 
and  regulation  in  the  particular  case,  so  that  the  statute  would  be  con- 
stitutional ;  that  the  control  which,  hy  common  law  and  by  statute, 
was  exercised  over  common  carriers,  was  conclusive  upon  the  point 
that  the  right  of  the  legislature  to  regulate  the  charges  for  services  in 
connection  with  the  use  of  property  did  not  depend  in  every  case  upon 
the  question  whether  there  was  a  legal  monopoly,  or  whether  special 
governmental  privileges  or  protection  had  been  bestowed  ;  that  there 
were  elements  of  publicity  in  the  business  of  elevating  grain  which 
peculiarly  affected  it  with  a  public  interest;  that  those  elements  were 
found  in  the  nature  and  extent  of  the  business,  its  relation  to  the  com- 
merce of  the  State  and  country,  and  the  practical  monopoly  enjoj'ed 
by  those  engaged  in  it;  that  about  120,000,000  bushels  of  grain  come 
annually  to  Buffalo  from  the  West ;  that  the  business  of  elevating 
grain  at  Buffalo  is  connected  mainly  with  lake  and  canal  transporta- 
tion ;  that  the  grain  received  at  New  York  in  1887  by  way  of  the 
Erie  Canal  and  Hudson  River,  during  the  season  of  canal  navigation, 
exceeded  46,000,000  bushels,  an  amount  very  largely  in  excess  of  the 
grain  received  during  the  same  period  by  rail  and  by  river  and  coast- 
wise vessels  ;  that  the  elevation  of  that  grain  from  lake  vessels  to 
canal-boats  takes  place  at  Buffalo,  where  there  are  thirty  or  forty  ele- 
vators, stationary  and  floating  ;  that  a  large  proportion  of  the  surplus 
cereals  of  the  country  passes  through  the  elevators  at  Buffalo  and  finds 


808  BUDD  V.   NEW  YORK.  [CHAP.  V. 

its  way  through  the  Erie  Canal  and  Hudson  River  to  the  seaboard  at 
New  York,  whence  it  is  distributed  to  the  markets  of  the  world  ;  that 
the  business  of  elevating  grain  is  an  incident  to  the  business  of  trans- 
portation, the  elevators  being  indispensable  instrumentalities  in  the 
business  of  the  common  carrier,  and  in  a  broad  sense  performing  the 
work  of  carriers,  being  located  upon  or  adjacent  to  the  waters  of 
the  State,  and  transferruig  the  cargoes  of  grain  from  the  lake  vessels 
to  the  canal-boats,  or  from  the  canal-boats  to  the  ocean  vessels,  and 
thereby  performing  an  essential  service  in  transportation ;  that  by 
their  means  the  transportation  of  grain  by  water  from  the  upper  lakes 
to  the  seaboard  is  rendered  possible ;  that  the  business  of  elevating 
grain  thus  has  a  vital  relation  to  commerce  in  one  of  its  most  impor- 
tant aspects  ;  that  every  excessive  charge  made  in  the  course  of  the 
transportation  of  grain  is  a  tax  upon  commerce  ;  that  the  public  has  a 
deep  interest  that  no  exorbitant  charges  shall  be  exacted  at  any  point, 
upon  the  business  of  transportation ;  and  that  whatever  impaired  the 
usefulness  of  the  Erie  Canal  as  a  higlnva}-  of  commerce  involved  the 
pubUc  interest. 

The  Court  of  Appeals  said  that,  in  view  of  the  foregoing  exceptional 
circumstances,  the  business  of  elevating  grain  was  affected  with  a  pub- 
lic interest,  within  the  language  of  Lord  Chief  Justice  Hale,  in  his 
treatise  De  Portihus  Maris  (Harg.  Law  Tracts,  78)  ;  that  the  case 
fell  within  the  principle  which  permitted  the  legislature  to  regulate  the 
business  of  common  carriers,  ferrymen  and  hackmen,  and  interest  on 
the  use  of  monej- ;  that  the  underlying  principle  was,  that  business  of 
certain  kinds  holds  such  a  peculiar  relation  to  the  public  interest  that 
there  is  superinduced  upon  it  the  right  of  public  regulation  ;  and  that 
the  court  rested  the  power  of  the  legislature  to  control  .ind  rpgnlntft 
elevator  charges  upon  the  nature  and  extent  of  the  business,  thp  pxis- 
tence  of  a  virtual  monopoly,  the  benefit  derived  from  the  Erie  Canal's 
creating  the  business  and  making  it  possible,  the  interest  to  trade  and 
commerce,  the  relation  of  the  business  to  the  property  and  welfare  of 
the  State,  and  the  practice  of  legislation  in  analogous  cases,  collectively 
creating  an  exceptional  case  and  justifying  legislative  regulation . 

The  opinion  further  said  that  the  criticism  to  which  the  case  of 
Munn  V.  Illinois  had  been  subjected  proceeded  mainly  upon  a  limited 
and  strict  construction  and  definition  of  the  police  power ;  that  there 
was  little  reason,  under  our  system  of  government,  for  placing  a  close 
and  narrow  interpretation  on  the  police  power,  or  restricting  its  scope 
so  as  to  hamper  the  legislative  power  in  dealing  with  the  varying 
necessities  of  society'  and  the  new  circumstances  as  thej' arise  calling 
for  legislative  intervention  in  the  public  interest ;  and  that  no  serious 
invasion  of  constitutional  guarantees  b}-  the  legislature  could  withstand 
for  a  long  time  the  searching  influence  of  public  opinion,  which  was 
sure  to  come  sooner  or  later  to  the  side  of  law,  order  and  justice,  how- 
ever it  might  have  been  swayed  for  a  time  hy  passion  or  prejudice,  or 
whatever  aberrations  might  have  marked  its  course. 


CHAP,  v.]  BUDD  V.   NEW  YORK.  809 

We  regard  these  views  which  we  have  referred  to  as  announced  by 
the  Court  of  Appeals  of  New  York,  so  far  as  they  support  the  Aalidity 
of  the  statute  in  question,  as  sound  and  just.  .  .  . 

This  court,  in  Mann  v.  Illinois,  the  opinion  being  delivered  by  Chief 
Justice  Waite,  and  there  being  a  published  dissent  by  only  two  justices, 
considered  earefully  the  question  of  the  repugnancy  of  the  Illinois 
statute  to  the  Fourteenth  Amendment.  It  said,  that  under  the  powers 
of  government  inherent  in  every  sovereignty,  "the  government  regu- 
lates the  conduct  of  its  citizens  one  towards  another,  and  the  manner 
in  which  each  shall  use  his  own  property,  when  such  regulation  be- 
comes necessary  for  the  public  good  ;  "  and  that,  "  in  their  exercise  it 
has  been  customary  in  England  from  time  immemorial,  and  in  this 
countr}'  from  its  first  colonization,  to  regulate  ferries,  common  carriers, 
hackmen,  bakers,  millers,  wharfingers,  innkeepers,  etc.,  and  in  so 
doing  to  fix  a  maximum  of  charge  to  be  made  for  services  rendered, 
accommodations  furnished,  and  articles  sold."  It  was  added:  "To 
this  da}-,  statutes  are  to  be  found  in  many  of  the  States  upon  some  or 
all  these  subjects;  and  we  think  it  has  never  yet  been  successfully 
contended  that  such  legislation  came  within  any  of  the  constitutional 
prohibitions  against  interference  with  private  propert}-,"  It  announced 
as  its  conclusions  that,  down  to  the  time  of  the  adoption  of  the  Four- 
teenth Amendment,  it  was  not  supposed  that  statutes  regulating  the 
use,  or  even  the  price  of  the  use,  of  private  property  necessarily  de- 
prived an  owner  of  his  property  without  due  process  of  law ;  that, 
when  private  property  was  devoted  to  a  public  use,  it  was  subject  to 
public  regulation  ;  that  Munn  and  Scott,  in  conducting  the  business  of 
their  warehouse,  pursued  a  public  employment  and  exercised  a  sort  of 
public  office,  in  the  same  sense  as  did  a  common  carrier,  miller,  ferr}'- 
man,  innkeeper,  wharfinger,  baker,  cartman  or  hackne}-  coachman ; 
that  they  stood  in  the  very  gateway  of  commerce  and  took  toll  from 
all  who  passed;  that  their  business  tended  "  to  a  common  charge," 
and  had  become  a  thing  of  public  interest  and  use  ;  that  the  toll  on  the 
grain  was  a  common  charge  ;  and  that,  according  to  Lord  Chief  Justice 
Hale,  every  such  warehouseman  "  ought  to  be  under  a  public  regula- 
tion, viz."  that  he  "  take  but  reasonable  toll." 

This  court  further  held  in  Munn  v.  Illinois,  that  the  business  in 
question  was  one  in  which  the  whole  public  had  a  direct  and  positive 
interest ;  that  the  statute  of  Illinois  simpl}'  extended  the  law  so  as  to 
meet  a  new  development  of  commercial  progress ;  that  there  was  no 
attempt  to  compel  the  owners  of  the  warehouses  to  grant  the  public  an 
interest  in  their  property,  but  to  declare  their  obligations  if  they  used 
it  in  that  particular  manner ;  that  it  mattered  not  that  Munn  and  Scott 
had  built  their  warehouses  and  established  their  business  before  the 
regulations  complained  of  were  adopted ;  that,  the  property  being 
clothed  with  a  public  interest,  what  was  a  reasonable  compensation  for 
its  use  was  not  a  iudicial,  but  a  legislative  question  :  that.  in_coniitries 
where  the  common  law  prevailed,  it  had  been  customary  from  time 


810  BUDD  V.    NEW  YORK.  [cHAP.  V. 

immemorial  for  the  lesiislature  to  declare  what  should  b*^  a  reasonable 
coniuensation  under  such  circumstances,  or  to  fix  a  maximum  be3ond 
which  any  chariic  made  would  be  unreasonable  ;  that  the  warehouses 
of  Munn  and  Scott  were  situated  in  Illinois  and  their  business  was 
carried  on  exclusively  in  that  State  ;  that  the  warehouses  were  no  more 
necessarily  a  part  of  commerce  itself  than  the  dray  or  the  cart  b}'' 
which,  but  for  them,  ftiain  would  be  transferred  from  one  railroad 
station  to  another ;  that  their  regulation  w^as  a  thinly  of  domestic  con- 
cern ;  that,  until  Congress  acted  in  reference  to  their  interstate  rela- 
tions, the  State  mi.tyht  exercise  all  the  powers  of  goyernment  over 
them,  even  though  in  so  doing  it  might  operate  indirectly  ui)on  com- 
merce outside  its  immediate  jurisdiction  ;  and  that  the  provision  of  §  9 
of  article  1  of  the  Constitution  of  the  United  States  operated  only  as 
a  limitation  of  the  powers  of  Congress,  and  did  not  affect  the  States  in 
the  regulation  of  their  domestic  affairs.  The  final  conclusion  of  the 
court  was,  that  the  Act  of  Illinois  was  not  repugnant  to  the  Constitu- 
tion of  the  United  States  ;  and  the  judgment  w^as  aflirmcd. 

In  Sinking  Fund  Cases,  99  U.  S.  700,  747,  Mr.  Justice  Bradley, 
who  was  one  of  the  justices  who  concurred  in  the  opinion  of  the  court 
in  Munn  v.  Illinois,  speaking  of  that  case,  said:  "  The  inquiry  there 
was  as  to  the  extent  of  the  police  power  in  cases  where  the  public 
interest  is  affected  ;  and  we  held  that  when  an  employment  or  business 
becomes  a  matter  of  such  public  interest  and  importance  as  to  crcat e 
a  common  charge  or  burden  upon  the  citizen  ;  in  other  w^ords,  when  it 
becomes  a  practical  monoijoly,  to  which  the  citizen  is  compelled  to 
resort,  and  by  means  of  which  a  tribute  can  be  exacted  from  the  com- 
munity, it  is  subject  to  regulation  by  the  legislative  power."  Although 
this  was  said  in  a  dissenting  opinion  in  Sinking  Fund  Cases,  it  shows 
what  Mr.  Justice  Bradley  regarded  as  the  principle  of  the  decision  in 
Munn  V.  Illinois. 

In  Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347,  354, 
this  court  said  :  "That  it  is  within  the  power  of  the  government  to 
regulate  the  prices  at  which  water  shall  be  sold  by  one  who  enjoys  a 
virtual  monopoly  of  the'  sale,  we  do  not  doubt.  That  question  is 
settled  by  what  was  decided  on  full  consideration  in  Munn  v.  Illinois, 
94  U.  S.  113.  As  was  said  in  that  case,  such  regulations  do  not  de- 
prive a  person  of  his  propeit}-  without  due  process  of  law." 

In  Wahash  &c.  Railway  Co.  v.  Illinois,  118  U.  S.  557,  569,  Mr. 
Justice  Miller,  who  had  concurred  in  the  judgment  in  Munn  v.  Illinois, 
referred,  in  delivering  the  opinion  of  the  court,  to  that  case,  and  said  : 
"  That  case  presented  the  question  of  a  private  citizen,  or  nnincorpo- 
rated  partnership,  engaged  in  the  warehousing  business  in  Chicago, 
free  from  anj-  claim  of  right  or  contract  under  an  Act  of  Incorporation 
of  any  State  whatever,  and  free  from  the  question  of  continuous  trans- 
portation through  several  States.  And  in  that  case  the  court  was  pre- 
sented with  the  question,  which  it  decided,  whether  any  one  engaged 
in  a  public  business,  in  which  all  the  public  had  a  right  to  require  Ms 


CHAP,  v.]  BUDD  V.   NEW  YORK.  811 

service,  could  be  regulated  b}-  Acts  of  the  Legislature  in  the  exercise  of 
this  public  function  and  public  duty,  so  far  as  to  limit  the  amount  of 
charges  that  should  be  made  for  such  services." 

In  Doiv  V.  Beidelma7i,  125  U.  S.  680,  686,  it  was  said  b}'  Mr.  Justice 
Gray,  in  delivering  the  opinion  of  the  court,  that  in  Jhiiin  v.  Illinois 
the  court,  after  atiirming  the  doctrine  that  by  the  common  law  carriers 
or  other  persons  exercising  a  public  employment  could  not  charge 
more  than  a  reasonable  compensation  for  their  services,  and  that  it  is 
within  the  power  of  the  legislature  "  to  declare  what  shall  be  a  reason- 
able compensation  for  such  services,  or  perhaps,  more  properl}'  speak- 
ing, to  fix  a  maximum  beyond  which  any  charge  made  would  be  un- 
reasonable," said  that  to  limit  the  rate  of  charges  for  services  rendered 
in  the  public  employment,  or  for  the  use  of  property  in  which  the  pub- 
lic has  an  interest,  was  only  changing  a  regulation  which  existed  be- 
fore, and  established  no  new  principle  in  the  law,  but  onlj^  gave  a  new 
effect  to  an  old  one. 

In  Chicago  &c.  Railwaij  Co.  v.  Mi?inesota,  134  U.  S.  418,  461,  it 
was  said  by  Mr.  Justice  Bradley',  in  his  dissenting  opinion,  in  which 
•Mr.  Justice  Gray  and  Mr.  Justice  Lamar  concurred,  that  the  decision 
of  the  court  in  that  case  practically  overruled  Munn  v.  Illinois;  but 
the  opinion  of  the  court  did  not  say  so,  nor  did  it  refer  to  Munn  v. 
Illinois;  and  we  are  of  opinion  that  the  decision  in  the  case  in  134 
U.  S.  is,  as  will  be  hereafter  shown,  quite  distinguishable  from  the  present 
cases. 

It  is  thus  apparent  that  this  court  has  adhered  to  the  decision  in 
Munn  v.  Illinois  and  to  the  doctrines  announced  in  the  opinion  of  the 
court  in  that  case  ;  and  those  doctrines  have  since  been  repeatedl}'  en- 
forced in  the  decisions  of  the  courts  of  the  States. 

In  Railivay  v.  Railway,  30  Ohio  St.  604,  616,  in  1877,  it  was  said, 
citing  Munn  v.  Illinois :  "  When  the  owner  of  property  devotes  it  to 
a  public  use,  he,  in  effect,  grants  to  the  public  an  interest  in  such  use, 
and  must,  to  the  extent  of  the  use,  submit  to  be  controlled  by  the  pub- 
lic, for  the  common  good,  as  long  as  he  maintains  the  use."  That  was 
a  decision  by  the  Supreme  Court  Commission  of  Ohio. 

In  State  v.  Gas  Comjmny,  34  Ohio  St.  572,  582,  in  1878,  Munn  v. 
Illinois  was  cited  with  approval,  as  holding  that  where  the  owner  of 
property  devotes  it  to  a  use  in  which  the  public  have  an  interest,  he  in 
effect  grants  to  the  public  an  interest  in  such  use,  and  must,  to  the 
extent  of  that  interest,  submit  to  be  controlled  bj'  the  public,  for  the 
common  good,  so  long  as  he  maintains  the  use;  and  the  court  added 
that  in  Munn  v.  Illinois  the  principle  was  applied  to  warehousemen 
engaged  in  receiving  and  storing  grain  ;  that  it  was  held  that  their 
rates  of  charges  were  subject  to  legislative  regulation  ;  and  that  the 
principle  applied  with  greater  force  to  corporations  when  they  were 
invested  with  franchises  to  be  exercised  to  subserve  the  public  interest. 

The  Supreme  Court  of  Illinois,  in  Ruggles  v.  People^  91  Illinois, 
256,  262,  in  1878,  cited  Munn  v.   People,  69  Illinois,  80,  which  was 


812  BUDD   V.   NEW   YORK.  [CIIAP.  V. 

affirmed  in  Munn  v.  IlUnols,  as  holding  that  it  was  competent  for  the 
General  Assembly  to  fix  the  maximum  charges  bj-  individuals  keeping 
public  warehouses  for  storing,  handling  and  shipping  grain,  and  that, 
too,  when  such  persons  had  derived  no  special  privileges  from  the 
State,  but  were,  as  citizens  of  the  State,  exercising  the  business  of 
storing  and  handling  grain  for  individuals. 

The  Supreme  Court  of  Alabama,  in  Davis  v.  The  State,  68  Ala- 
bama, 58,  in  1880,  held  that  a  statute  declaring  it  unlawful,  within 
certain  counties,  to  transport  or  move,  after  sunset  and  before  sunrise 
of  the  succeeding  day,  any  cotton  in  the  seed,  but  permitting  the  owner 
or  purchaser  to  remove  it  from  the  held  to  a  place  of  storage,  was  not 
unconstitutional.  Against  the  argument  that  the  statute  was  such  a 
despotic  interference  with  the  rights  of  private  property'  as  to  be  tan- 
tamount, in  its  practical  effect,  to  a  deprivation  of  ownership  "  without 
due  process  of  law,"  the  court  said  that  the  statute  sought  only  to 
regulate  and  control  the  transportation  of  cotton  in  one  particular  con- 
dition of  it,  and  was  a  mere  police  regulation,  to  which  there  was  no 
constitutional  objection,  citing  Munn  v.  Illinois.  It  added,  that  the 
object  of  the  statute  was  to  regulate  traffic  in  the  staple  agricultural* 
product  of  the  State,  so  as  to  prevent  a  prevalent  evil,  which,  in  the 
opinion  of  the  law-making  power,  might  do  much  to  demoralize  agri- 
cultural labor  and  to  destroy  the  legitimate  profits  of  agricultural  pur- 
suits, to  the  public  detriment,  at  least  within  the  specified  territory. 

In  Baker  v.  The  State,  54  Wisconsin,  368,  373,  in  1882,  Munn  v. 
Illinois  was  cited  with  approval  by  the  Supreme  Court  of  \Yisconsin, 
as  holding  that  the  Legislature  of  Illinois  had  power  to  regulate  public 
warehouses,  and  the  warehousing  and  inspection  of  grain  within  that 
State,  and  to  enforce  its  regulations  b}"  penalties,  and  that  such  legis- 
lation was  not  in  conflict  with  any  provision  of  the  Federal  Constitution. 

The  Court  of  Appeals  of  Kentucky,  in  1882,  in  Nash  v.  Farje,  80 
Kentucky,  539,  545,  cited  Munn  v.  Illinois,  as  applicable  to  the  case 
of  the  proprietors  of  tobacco  warehouses  in  the  cit}"  of  Louisville,  and 
held  that  the  character  of  the  business  of  the  tobacco  warehousemen 
was  that  of  a  public  employment,  such  as  made  them  subject,  in  their 
charges  and  their  mode  of  conducting  business,  to  legislative  regulation 
and  control,  as  having  a  practical  monopolj'  of  the  sales  of  tobacco  at 
auction. 

In  1884,  the  Supreme  Court  of  Pennsylvania,  in  Girard  Storage  Co. 
V.  Southivark  Co.,  105  Penn.  St.  248,  252,  cited  Munn  v.  Illinois  as 
involving  the  rights  of  a  private  person,  and  said  that  the  principle 
involved  in  the  ruling  of  this  court  was,  that  where  the  owner  of  such 
property  as  a  warehouse  devoted  it  to  a  use  in  which  the  public  had  an 
interest,  he  in  effect  granted  to  the  public  an  interest  in  such  use,  and 
must,  therefore,  to  the  extent  thereof,  submit  to  be  controlled  \>y  the 
public  for  the  common  good,  as  long  as  he  maintained  that  use. 

In  Sawyer  v.  Davis,  136  Mass.  239,  in  1884,  the  Supreme  Judicial 
Court  of  Massachusetts  said  that  nothing  is  better  established  than  the 


CHAP,  v.]  BUDD  V.    NEW  YORK.  813 

power  of  the  legislature  to  make  what  are  called  police  regulations, 
declaring  in  what  manner  property  shall  be  used  and  enjoyed  and  busi- 
ness carried  on,  with  a  view  to  the  good  order  and  benefit  of  the  com- 
munity, even  though  they  may  interfere  to  some  extent  with  the  full 
enjoyment  of  private  property,  and  although  no  compensation  is  given 
to  a  person  so  inconvenienced  ;  and  Mimn  v.  Illinois  was  cited  as 
holding  that  the  rules  of  the  common  law  which  had  from  time  to  time  ■ 
been  established,  declaring  or  limiting  the  right  to  use  or  enjoy  prop- 
erty, might  themselves  be  changed  as  occasion  might  require. 

The  Supreme  Court  of  Indiana,  in  1885,  in  BrecJihill  v.  Randall^ 
102  Indiana,  528,  held  that  a  statute  was  valid  which  required  persons 
selling  patent  rights  to  file  with  the  clerk  of  the  county  a  copy  of  the 
patent,  with  an  affidavit  of  genuineness  and  authoritj'  to  sell,  on  the 
ground  that  the  State  had  power  to  make  police  regulations  for  the  pro- 
tection of  its  citizens  against  fraud  and  imposition  ;  and  the  court 
cited  Muun  v.  Illinois  as  authority. 

The  Supreme  Court  of  Nebraska,  in  1885,  in  Webster  Telei^hone 
Case^  17  Nebraska,  126,  held  that  when  a  corporation  or  person  as- 
sumed and  undertook  to  supply  a  public  demand,  made  necessary  by 
the  requirements  of  tiie  commerce  of  the  country,  such  as  a  public  tele- 
phone, such  demand  must  be  supplied  to  all  alike,  without  discrimina- 
tion ;  and  Miinn  v.  Illinois  was  cited  by  the  prevailing  party  and  by 
the  court.  The  defendant  was  a  corporation,  and  had  assumed  to  act 
in  a  capacit}'  which  was  to  a  great  extent  public,  and  had  undertaken 
to  satisf}'  a  public  want  or  necessity,  although  it  did  not  possess  any 
special  privileges  bj^  statute  or  any  monopoly  of  business  in  a  given 
territory ;  yet  it  was  held  that,  from  the  very  nature  and  character  of 
its  business,  it  had  a  monopoh"  of  the  business  which  it  transacted. 
The  court  said  that  no  statute  had  been  deemed  necessary  to  aid  the 
courts  in  holding  that  where  a  person  or  company  undertook  to  supplj' 
a  public  demand,  which  was  "  affected  with  a  public  interest,"  it  must 
supply  all  alike  who  occupied  a  like  situation,  and  not  discriminate  in 
favor  of  or  against  any. 

In  Stone  v.  Yazoo  &  Miss.  Valley  R.  Co..,  62  Mississippi,  607,  639, 
the  Supreme  Court  of  Mississippi,  in  1885,  cited  3[unn  v.  Illinois  as 
deciding  that  the  regulation  of  warehouses  for  the  storage  of  grain, 
owned  by  private  individuals,  and  situated  in  Illinois,  was  a  thing  of 
domestic  concern  and  pertained  to  the  State,  and  as  affirming  the  right 
of  the  State  to  regulate  the  business  of  one  engaged  in  a  public  emploj'- 
ment  therein,  although  that  business  consisted  in  storing  and  trans- 
ferring immense  quantities  of  grain  in  its  transit  from  the  fields  of 
production  to  the  markets  of  the  world. 

In  Hockett  v.  The  State,  105  Indiana,  250,  258,  in  1885,  the  Su- 
preme Court  of  Indiana  held  that  a  statute  of  the  State  which  pre- 
scribed the  maximum  price  which  a  telephone  compan}'  should  charge 
for  the  use  of  its  telephones  was  constitutional,  and  that  in  legal  con- 
templation   all  the  instruments  and  appliances  used  by  a  telephone 


814  BUDD  V.   NEW  YORK.  [CHAP.  V. 

company  in  the  transaction  of  its  business  were  devoted  to  a  public 
use,  and  tlie  propert}'  thus  devoted  became  a  legitimate  subject  of 
legislative  regulation.  It  cited  Jluun  v.  lUlnuis  as  a  leading  case  in 
support  of  that  proposition,  and  said  that  although  that  case  had  been 
the  subject  of  comment  and  criticism,  its  authority  as  a  precedent  re- 
mained unshaken.  This  doctrine  was  confirmed  in  Central  Union 
Telephone  Co.  v.  Bradbury,  106  Indiana,  1,  in  the  same  j'ear,  and  in 
Central  Union  Telephone  Co.  v.  The  State.,  118  Indiana,  194,  207,  in 
1888,  in  which  latter  case  Munn  v.  Illinois  was  cited  by  the  court. 

In  Chesapeake  &  Potomac  Telephone  Co.  v.  Balto.  &  Ohio  Tele- 
grajjh  Co.,  66  Maryland,  399,  414,  in  1886,  it  was  held  that  the  tele- 
graph and  the  telephone  were  public  vehicles  of  intelligence,  and  those 
who  owned  or  controlled  them  could  no  more  refuse  to  perform  im- 
partially the  functions  which  they  had  assumed  to  discharge  than  a 
railway  company,  as  a  common  carrier,  could  rightfully  refuse  to  per- 
form its  duty  to  the  public ;  and  that  the  legislature  of  the  State  had 
full  power  to  regulate  the  services  of  telephone  companies,  as  to  the 
parties  to  whom  facilities  should  be  furnished.  The  court  cited  Munn 
V.  Illinois,  and  said  that  it  could  no  longer  be  controverted  that  the 
legislature  of  a  State  had  full  power  to  I'egulate  and  control,  at  least 
within  reasonable  limits,  public  emplo3'ments  and  property  used  in 
connection  therewith  ;  that  the  operation  of  the  telegraph  and  the  tele- 
phone in  doing  a  general  business  was  a  public  employment,  and  the 
instruments  and  appliances  used  were  propert}-  devoted  to  a  public  use 
and  in  which  the  public  had  an  interest ;  and  that,  such  being  the  case, 
the  owner  of  the  property  thus  devoted  to  public  use  must  submit  to 
have  that  use  and  employment  regulated  b^'  public  authoritj-  for  the 
common  good. 

In  the  Court  of  Chancery  of  New  Jersey,  in  1889,  in  Delcmare,  &c. 
Bailroad  Co.  v.  Central  Stock -Yard  Co.,  45  N.  J.  Eq.  50,  60,  it  was 
held  that  the  legislature  had  power  to  declare  what  services  warehouse- 
men should  render  to  the  public,  and  to  fix  the  compensation  that 
might  be  demanded  for  such  services ;  and  the  court  cited  3funn  v. 
Illinois  as  properly  holding  that  warehouses  for  the  storage  of  grain 
must  be  regarded  as  so  far  public  in  their  nature  as  to  be  subject  to 
legislative  control,  and  that  when  a  citizen  devoted  his  property  to  a 
use  in  which  the  public  had  an  interest,  he  in  effect  granted  to  the 
public  an  interest  in  that  use,  and  rendered  himself  subject  to  control, 
in  that  use,  by  the  bod}'  politic. 

In  Za?iesville  v.  Gas-Light  Company,  47  Ohio  St.  1,  in  1889,  it  was 
said  by  the  Supreme  Court  of  Ohio,  that  the  principle  was  well  estab- 
lished, that  where  the  owner  of  property  devotes  it  to  a  use  in  which 
the  public  have  an  interest,  he  in  effect  grants  to  the  public  an  interest 
in  such  use,  and  must  to  the  extent  of  that  interest  submit  to  be  con- 
trolled by  the  public  for  the  common,  good,  as  long  as  he  maintains 
the  use;_:aad  that  such  was  the  point. .of  the  decision. ia  Munn  v. 
Illinois. — .-  _-»- 


CHAP,  v.]  BUDD  V.   NEW  YORK.  815 

We  must  regard  the  principle  maintained  in  Jihinn  v.  Illinois  as 
firmly  established  ;  and  we  think  it  covers  the  present  cases,  in  respect 
to  the  charge  for  elevatino-,  receiving,  weighing  and  discharging  the 
grain,  as  well  as  in  respect  to  the  charge  for  trimming  and  shovelling 
to  tlie  leg  of  the  elevator  when  loading,  and  trimming  the  cargo  when 
loaded.  If  the  shovellers  or  scoopers  chose,  they  might  do  the  shovel- 
ling b}'  hand,  or  might  use  a  steam-shovel.  A  steam-shovel  is  owned 
by  the  elevator  owner,  and  the  power  for  operating  it  is  furnished  by 
the  engine  of  the  elevator ;  and  if  the  scooper  uses  the  steam-shovel, 
he  pays  the  elevator  owaier  for  the  use  of  it. 

The  answer  to  the  suggestion  that  by  the  statute  the  elevator  owner 
is  forbidden  to  make  any  profit  from  the  business  of  shovelling  to  the 
leg  of  the  elevator  is  that  made  by  the  Court  of  Appeals  of  New  York 
in  the  case  of  Budd,  that  the  words  "  actual  cost,"  used  in  the  statute, 
were  intended  to  exclude  any  charge  by  the  elevator  owner,  beyond 
the  sum  specified  for  the  use  of  his  machinery  in  shovelling  and  the 
ordinary  expenses  of  operating  it,  and  to  confine  the  charge  to  the 
actual  cost  of  the  outside  labor  required  for  trimming  and  bringing 
the  grain  to  the  leg  of  the  elevator;  and  that  the  purpose  of  the 
statute  could  be  easily  evaded  and  defeated  if  the  elevator  owner  was 
permitted  to  separate  the  services,  and  to  charge  for  the  use  of  his 
steam-shovel  an}'  sum  which  might  be  agreed  upon  between  himself 
and  the  shovellers'  union,  and  thereb}',  under  color  of  charging  for  the 
use  of  his  steam-shovel,  to  exact  of  the  carrier  a  sum  for  elevating  be- 
j'ond  the  rate  fixed  by  the  statute. 

We  are  of  opinion  that  the  Act  of  the  Legislature  of  New  York  is 
not  contrary  to  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  and  does  not  deprive  the  citizen  of  his  property  without 
due  process  of  law  ;  that  the  Act,  in  fixing  the  maximum  charges  which 
it  specifies,  is  not  unconstitutional,  nor  is  it  so  in  limiting  the  charge 
for  shovelling  to  the  actual  cost  thereof;  and  that  it  is  a  proper  exer- 
cise of  the  police  power  of  the  State. 

On  the  testimou}'  in  the  cases  before  us  the  business  of  elevating 
grain  is  a  business  charged  with  a  public  interest,  and  those  w^ho  carry 
it  on  occupy  a  relation  to  the  community  analogous  to  that  of  common 
carriers.  The  elevator  owner,  in  fact,  retains  the  grain  in  his  custody 
for  an  appreciable  period  of  time,  because  he  receives  it  into  his  cus- 
tody, weighs  it,  and  then  discharges  it,  and  his  employment  is  thus 
analogous  to  that  of  a  warehouseman.  In  the  actual  state  of  the  busi- 
ness the  passage  of  the  grain  to  tlie  city  of  New  York  and  other  places 
on  the  seaboard  would,  without  the  use  of  elevators,  be  practically  im- 
possible. The  elevator  at  BuflTalo  is  a  link  in  the  chain  of  transporta- 
tion to  the  seaboard,  and  the  elevator  in  the  harbor  of  New  Yorlv  is  a 
like  link  in  the  transportation  abroad  by  sea.  The  charges  made  bv 
the  elevator  infiuence  the  price  of  grain  at  the  point  of  destination  on 
the  seaboard,  and  that  Influence  extends  to  the  prices  of  grain  at  the 
places  abroad  to  which  it  goes..   The  elevator  is  devoted  by  its  owner, 


816  BUDD  V.   NEW  YORK.  [CHAP.  V. 

who  cpynyos  in  the  business,  to  a  use  in  which  the  public  has  an  inter- 
est, niul  he  must  submit  to  be  controlled  by  public  legislation  for  the 
common  uood. 

It  is  contended  in  the  briefs  for  the  plaintiffs  in  error  in  the  Annan 
and  Pinto  cases  that  the  business  of  the  relators  in  handling  grain  was 
wholly  private,  and  not  subject  to  regulation  by  law  ;  and  that  they 
had  received  from  the  State  no  charter,  no  privileges  and  no  immunitj', 
and  stood  before  the  law  on  a  footing  with  the  laborers  the}-  employed 
to  shovel  grain,  and  were  no  more  subject  to  regulation  than  any  other 
individual  in  the  communit}'.  But  these  same  facts  existed  in  ]\binn 
V.  Illinois.  In  that  case,  the  parties  offending  were  private  individuals, 
doing  a  private  business,  without  sxny  privilege  or  monopoly  granted  to 
them  b}-  the  State.  Not  only  is  the  business  of  elevating  grain  affected 
w ith  a  public  interest,  but  the  records  show  that  it  is  an  actual  monop- 
olyj  besides  being  incident  to  the  business  of  transportation  and  to 
that  of  a  common  carrier,  and  thus  of  a  quasi-public  character.  The 
Act  is  also  constitutional  as  an  exercise  of  the  police  power  of  the 
State. 

So  far  as  the  statute  in  question  is  a  regulation  of  commerce,  it  is  a 
regulation  of  commerce  only  on  the  waters  of  the  State  ofNew  York . 
It  operates  onl}-  within  the  limits  of  that  State,  and  is  no  more  ob- 
noxious as  a  regulation  of  interstate  commerce  than  was  the  statute  of 
Illinois  in  respect  to  warehouses,  in  Munn  v.  Illinois.  It  is  of  the 
same  character  with  navigation  laws  in  respect  to  navigation  within 
the  State,  and  laws  regulating  wharfage  rates  within  the  State,  and 
other  kindred  laws.^  .  .  . 

In  the  cases  before  us,  the  records  do  not  show  that  the  charges 
fixed  b}-  the  statute  are  unreasonable,  or  that  propert}-  has  been  taken 
without  due  process  of  law,  or  that  there  has  been  any  denial  of  the 
equal  protection  of  the  laws ;  even  if  under  any  circumstances  we 
could  determine  that  the  maximum  rate  fixed  by  the  legislature  was 
unreasonable. 

In  Georgia  Banldnfj  Co.  v.  Smith,  128  U.  S.  174,  179,  in  the 
opinion  of  the  court,  delivered  by  Mr.  Justice  Field,  it  Avas  said  that 
this  court  had  adjudged  in  numerous  instances  that  the  legislature  of  a 
State  had  the  power  to  presci'ibe  the  charges  of  a  railroad  company 
for  the  carriage  of  persons  and  merchandise  within  its  limits,  in  the 
absence  of  any  contract  to  the  contrary,  subject  to  the  limitation  that 
the  carriage  is  not  required  without  reward,  or  upon  conditions  amount- 
ing to  the  taking  of  property  for  public  use  without  just  compensation, 
and  that  what  is  done  does  not  amount  to  a  regulation  of  foreign  or 
interstate  commerce. 

It  is  further  contended  for  the  plaintiffs  in  error  that  the  statute  in 
question  violates  the  Fourteenth  Amendment,  because  it  takes  from 
the  elevator  owners  the  equal  protection  of  the  laws,  in  that  it  applies 

1  For  a  passage  omitted  here,  see  an\e,  p.  671.  — Ed. 


CHAP. 


v.] 


LAWTON   V.    STEELE. 


817  '^^'^ 


onh'  to  places  which  have  130,000  population  or  more,  and  does  not 
appl}'  to  places  which  have  less  than  130,000  population,  and  thus 
operates  against  elevator  owners  in  the  larger  cities  of  the  State.  Tlie 
law  operates  equally  on  all  elevator  owners  in  ]:)laces  having  130,000 
population  or  more ;  and  we  do  not  perceive  how  they  are  deprived  of 
t he  equal  protection  of  the  1  a w s,  within  the  meaning  of  the  Fourtee n th 
Amendment.  Judgments  affirmed. 

[Brewer,  J.,  gave  a  dissenting  opinion  in  which  Field,  J.,  and 
Brown,  J,  concurred.]  ^^^^/y|4.2)^i?.  /  rjOA.  X.    I  b*  1 


.^^ 


M 


iJ" 


^^ 


1894. 


^ivcfet 


1^         1^  LAWTON  V.  STEP:LE. 

'^^*'(  Supreme  Court  of  the  United  States. 

[14  Sup.  Court  Rep.  499.] 

In  error  to  the  Supreme  Court  of  the  State  of  New  York. 

This  was  an  action  at  law  instituted  in  tlie  Supreme  Court  for  the 
count}-  of  Jefferson  by  the  plaintiffs  in  error  against  the  defendant  in 
error,  together  with  Edward  L.  Sargent  and  Richard  U.  Sherman,  for 
the  conversion  of  fifteen  hoop  and  fyke  nets  of  the  alleged  value  of  (^"^    ^ 
$525>      Defendants   Steele  and  Sargent  interposed  a  general  denial.    ^^^^^  (LlaM^ 
Defendant  Sherman  pleaded  that  he,  with  three  others,  constituted  the    ""       ri        Ix 
"  Commissionex's  of  Fisheries  "  of  the  State  of  New  York,  with  power    ^    ^''^'^■*^     ^ 
to  give  directions  to  game  and  fish  protectors  with  regard  to  the  enforce-  V?>^  kkaXv^ 
ment  of  the  same  law 


xvtu 


J  that  defendantlSf.ee1e)was  a  game,  and  fish  pro-    i^^yjij^j^o^  ^ 
by  the  Governor  of  the  State  of  New  York,  and     v^  .^ 


vvl 


tector,  duly  appointed 

that  the  nets  sued  for  were  taken  possession  of  b\'  said  Steele,  as  such 
game  and  fish  protector,  upon  the  ground  that  they  were  maintajiied 
upon  the  waters  of  the  State  in  violation  of  existing  statutes  for  the 
protection  of  fish  and  game,  and  thereby  became  a  public  nuisance. 

The  facts  were  undisputed.     The  nets  were  the  property  of  the  plain- 
tiffs,  and  were  taken  awaj-  by  tlie  defendant  Steele,  and  destroyed.     At 
the_time  of  the  taking,  most  of  the  nets  were  in  the  waters  of  the  Black    (ijJ^[sij\jjk(yM- 
River  Bay,  being  used  for  fishing  purposes,  and  the  residue  were  upon        _|_ 
the  shore  of  that  ba};,  having  recently  been  used  for  the  same  purpose.    '^^'^^^ 
The  plaintiffs  were  fishermen,  and  the  defendant  Steele  was  a  State     ^  ^ 
game  and  fish  protector.     The  taking  and  destruction  of  the  nets  w^ere    aAAA<Ja.ixx'0^^ 


•aw  \ 


claimed  to  have  been  justifiable  under  the  statutes  of  the  State  relating 
to  the  protection  of  game  and  fish.     Plaintiffs  claimed  there  was  no 


A 


justification  under  the  statutes,  and  if  they  constituted  such  justifica- 
tion upon  their  face,  they  were  unconstitutional.  ^Defendant  Slierman     ><  /x>^.^  o\  (k^ 
was  a  State  Fish  Commissioner.     Defendant  Sargent  was  President      i^  •*-  « 

of  the  Jefferson  County  Fish  and  Game  Association./'  Plaintiffs  claimed  c^^^^^  ly^W 
these  defendants  to  be  liable  upon  the  ground  that  they  instigated,  i  -f  .jh  \" 
incited,  or  directed  the  taking  and  destruction  of  the  nets.    .  ^     j'VVaAJ-*'^ 

vol..  I.  —  52  (jU^tfcv^"Uaw.  . 


ft:{uUl,tA    ^1^     {-rV^VX    ^^^\i^      LAWTON   V.    STEELE.    /W-^   /U/^C-    [CHAP.  V.     ^^-^ 

V 

UuaA,  ^/IX'i^"  Upon  trial  before  a  jury  a  verdict  was  rendered,  subject  to  the  opin- 

iljjjj  nuifiiJt-^^^^  °^  ^''^  court,  in  favor  of  the  i)Iaintitfs  against  defendant  Steele  for 

J  r    the  sum  of  S21G,  and  in  favor  of  defendants  Sargent  and  Sherman. 

t\)    xA^mIa       a  motion  for  a  new  trial  was  denied,  and  judgment  entered  upon  tlie 

I     U/^^^(^«  verdict  for  8216  damages  and  S16G.09  costs.     On  appeal  to  the  General 

d  Term  this  judgment  was  reversed,  and  a  new  trial  ordered,  and  a  fur- 

A/i,  OA^       ii^Qi-  appeal  allowed  to  the  Court  of  Appeals.     On  appeal  to  the  Court 

AjjSA  n^'    of  Appeals,  the  order  of  the  General  Term  grantin<!:  a  new  trial  was 

d     '        affirmed,  and  judgment  absolute  ordered  for  the  defendant.     119  N.  Y. 

/^atv<  .  226.     Plaintiffs  thereupon  sued  out  a  writ  of  error  from  this  court. 

C        1  Z,evi  H.  Broxcn,  for  plaintiffs  in  error. 

^  Elon  R.  Brown,  for  defendant  in  error. 

)j^(f^\x.  W^      Mr.  Justice  Brown,  after  stating  the  facts  in  the  foregoing  language, 
,  ^  .-      delivered  the  opinion  of  the  court. 

This  case  involves  tlie  constitutionality  of  an  Act  of  the  Legislature 
»X  /^>W-'^  of  the  State  of  New  York  known  as  chapter  591,  Laws  of  New  York  of 
I  '-^^    1880,  as  amended  bj'  chapter  317,  Laws  of  New  York  of  1883,  entitled 

"An  Act  for  the  Appointment  of  Game  and  Fish  Protectors." 
^jjXA    O^A        gy  a  subsequent  Act  enacted  in  1886  : 

»Vf^T^^^<^         "  '"^^ction  1.   No  person  shall  at  any  time  kill  or  take  from  the  waters 

.  /  of  Henderson  Ba}-  or  Lake  Ontario,  within  one  mile  from  the  shore, 

W'mM^''^^       between  the  most  westerh'  point  of  Pillar  Point  and  the  boundary  line 

^ij^lJi^  ,  between  the  counties  of  Jefferson  and  Oswego,  .  .  ;  any  fish  of    any 

(^     kind  by  any  device  or  means  whatever  otherwise  than  by  hook  and  line 

lAC  \MJ^  or  rod  held  in  hand.     But  this  section  shall  not  apply  to  or  prohibit  the 

A^rsrdtu  v>-    catching  of  minnows  for  bait,  providing  the  person  using  nets  for  that 

.  \  ,  ^  purpose  shall  not  set  them,  and  shall  throw  back  an}'  trout,  bass,  or 

tlUyiu^^        any  other  game  fish   taken,  and  keep  onlj'  chubs,  dace,  suckers,  or 

.  1     shiners. 

"^^""^  "Sec.  2.   Any  person  violating  any  of  the  provisions  of  this  Act 

^oXlv^J^shall  be  guilty  of  a  misdemeanor,  and  liable  to  a  penalty  of  $50  for 

each  offence."     Laws,  1886,  c.  141. 

^  '^  ^^^'       By  the  Act  of  1880,  as  amended  by  the  Act  of  1883  : 

H.f'H   w  "Sec.  2.    Any  net,  pound,  or  other  means^  or  deyice  for  taking  or 

I    ^t-  capturing  fish,  or  whereb}'  the}-  may  be   taken  or  captured,  set,  put, 

fy       .if       floated,  had,  found,  or  maintained,  in  or  upon  any  of  the  waters  of  this 

H4^irn<'WA^    State,  or  upon  the  shores  of  or  islands  in  any  of  the  waters  of  this 

J,    /  State,  in  violation  of  an}-  existing  or  hereafter  enacted  statutes  or  laws 

^^^^'^'^  *  for  the  protection  of  fish,  is  hereby  declared  to  be.  and  is,  a  public 

Uj/UjJJd^       nuisance,  and  mav  be  abated  and  summ.arily  destroyed   by  any  per.son. 

I    ,  and  it  shall  be  the  duty  of  each  and  every  protector  aforesaid  mid  of 

\A  f\fdK  everv  game  constable  to  seize  and  remove  and  forthwith  destroy  tlie 

(    rvfijAiJ^      same,  .  .  .  and   no   action   for   damages  shall   lie   or   be    maintained 

C  against   any   person    for   or   on    account    of  any    such    seizure    and 

j<.  ^uXJi^'oX- (destruction." 

A  J  ,      This  last  section  was  alleged  to  be  unconstitutional  and  void  for 

<^^(^JMAA/^    three  reasons  :  (1)  as  depriving  toe  citizen  of  his„propert}:_witliQiil -due 


CHAP,  v.]  LA.WTON   V.    STEELE.  819 


^^.^WA-i-rw^''^- 


process  of  law  ;  (2)  as  being  in  restraint  of  tlie  libert}'  of  the  citizen  ;  . 

(3)  as  being  an  interference  with  the  admiralty-  and  maritime  jurisdiction  Za^cvc  (xX*m^ 

of  the  United- States.  irCcxA  (:0^« 

The  trial  conrt  ruled  the  first  of  the  above  propositions  in  plaintiffs'  ^                 , 

favor,   and   the   others    against   them,   and  judgment   was   tliereupon  -^""-^  ' 

entered  in  favor  of  the  plaintiffs.  ^  -  '  ir^'^'^'^ 

Tlie  constitutionalitv  of  the  section  in  question  was,  however,  sus-  '         i 

tained  by  the  General  Term  and  by  the  Court  of  Appeals,  upon  the  '^ 

ground  of  its  being  a  lawful  exercise  of  the  police  power  of  the  State.  Wii<  "Wit^j 

The  extent  and  limits  of  what  is  known  as  the  '•  police  power  "  have  ak^xjl  cioit'i 

been  a  fruitful  subject  of  discussion  in  the  appellate  courts  of  nearly  ^       .  ' 

ever}'  State  in  the  Union.     It  is  universally  conceded  to  include  eveiy-  "^^  '^-^^  ^r^ 

thing  essential  to  the  public  safety,  health,  and  morals,  and  to  Justify  ^o.a^-<^U. ^  t*^ 
the  destruction  or  abatement,  by  summary  proceedinos,  of  whatever  may 
be  regarded  as  a  public  nuisance.     Under  this  power  it  has  been  held 


e3»-*CtM.  /Ot^i 


/  that  the  State  may  order  the  destruction  of  a  house  falling  to  decay,  or    Ar-itXccC^  t 
otherwise  endangering  the  lives  of  passers-by  ;'  the  demolition  of  such  as     ^     .-  (     ^\ 
J-  a/e  in  the  path  of  a  conflagration  ;  the  slaughter  of  diseased  cattle  ;  the    '^ 
Y  destruction  of  decayed  or  unwholesome  food';  the  prohibition  of  wooden    -jJ    -^lititi^^^ 
6 'buildings  in  cities  ;  the  regulation  of  railways  and  other  means  of  public         '_. 
(/  conveyance,  and  of  interments   in  burial-grounds ;    the  restriction   of  '^'^^  . 
7 1(5"  obiectionable  trades  to  certain  localities  ;  the  compulsory  vaccination  of  C_col<  ^-^a^M^ 
f    children  ;  the  confinement  of  the  insane  or  those  afflicted  with  conta-  ^      (xamI^ 

I  0   gious  diseases  ;  the  restraint  of  vagrants,  beggars,  and  habitual  drunk-  I      // 

II  ardB  ;  the  suppression  of  obscene  publications  and   houses  of  ill  fame;  iM.^^^ 
/  j^  a  nd  the  prohibition  of  gambl  i  ng-houses  and  places  where  intoxicating    />,^,_^ax  "^ 

liquors  are  sold.      Beyond  this,  however,  the  State  may  interfere  wher-  l^M^ 

ever  the  public  interests  demand  it,  and  in  this  particular  a  large  dis-  z***^'^^  f 
cretion   is  necessarily  vested  in  the  legislature  to  determine,  not  only    ffJ^  C^iv*-^ 
what  the  interests  of  the  public  require,  but  what  measures  are  neces-    /»        i      rJ  ^ 
sary  for  the  protection  jof_ such  interests.      JBarhier  \.  Connolly,  113  n        f 
U.  S.  27  ]  Kiddy.  Pearson,  \2^  U.  S^  1.     To  justify  the  State  i'n  thus  ^j.  jLuti^"^ 
\  interposing  its  authorit^Mn  behalf  of  the  public,  it  must  a|")i:)ear, .first,    , 

tliat  the  interests  of  the  public  generally,  as  distinguished  from  those     , 
of  a  particular  class,  require  such  interference;  ami,  second,  that  the .>/<.4>a.  oJw^^ 
X\JiM'  means  are  reasonably  necessary  for  the  aecomi:)lishment  of  the  i)un>ose,    /  llX^^ 

and  not  unduly  oppressive  upon  individuals.     The  lep-islature  may  not,  ^(j 

under  the  guise  of  protecting  the  pnl)lic  interests,  arbitraril}-  interfere  C'X-«-^a.  -tJru 


-ftA^^' 


witu  privaie  ousmess,  or  impose  unusual  anfi  unnecessary  resiriciions  /      J    Ta  xi"/^ 

<AtM^    upon  lawful  occupations.     In  other  words,  its  determination  as  to  what  ^  J 

^         is  a  proper  exercise  of  its.police  powers  ij^  not  final  or  conclusive,- but  (rCCcx^x^^  ^ 

^^^      is  subject  to  the  supervision  of  the  courts.  .  .  .   [Here   reference  is  yr^ry.  j(jliaaj( 

made  to  Henderson  v.  3Iayor,  92  U.  S.  259  ;    Chj  Lung  v.  Freeman,  ^  (j     "^ 

^         92  U.  S.  265  ;  JR.  H.  Co.  v.  Hnsen,  95  U.  S.  465  ;  Rockwell  v.  Near-  /pcu^/a.^^-^  ' 

ing,  35  N.  Y.  302;  Austin  v.  Murray,  16  Pick.  121  ;    Watertovm  v.      pA.^'i/^tA^  '■ 

Mar/o,  109  Mass.  315  ;  The  Slaughter-House  Cases,  16  Wall.  36  ;  In  re  '.  .    '  / 

Cheesebrough,  78  N.  Y.  232 ;  and  Brown  v.  Perkins,  12  Gray,  89.]  /mj^OjU^ 


<r/T;  /,,820.„„  LAWTON   V.   STEELE.  [CHAP.  V. 

_'7  ^  The  preservation  of  game  and  fish,  however,  has  always  been  treated 

/r      ^s  within  the  proper  domain  of  the  police  power,  and  laws  limiting  the 

)    l/\)    {T"^^^  season  within  which  birds  and  wild  animals  may  be  killed  or  exposed 
for  sale,  and  prescribing  the  time  and   manner  in  whieli  fish  may  be 
caught,  have  been  repeatedly  upheld  by  the  courts.     Thus  in  /S/nith  \. 
h^ipj         Mai'i/land,  18  How.  71,  it  was  held  that  the  State  had  a  right  to  pro- 
//  tect  its  fisheries  iu  Chesapeake  Bay  by  making  it  unlawful  to  take  or 

capture  ousters  with  a  scoop  or  drag,  and  to  inflict  the  penalty  of  for- 
feiture upon  the  vessel  emplo^'cd  in  this  pursuit.  The  avowed  object 
of  tlie  Act  was  to  prevent  the  destruction  of  the  oysters  by  the  use  of 
particular  instruments  in  taking  them.  '"  It  does  not  touch,"  said  the 
court,  "  the  subject  of  the  common  liberty  of  taking  oj'sters  save  for 
the  purpose  of  guarding  it  from  injury-  to  whom  it  ma}'  belong  and  by 
whomsoever  it  may  be  enjoyed."  It  was  held  that  the  right  of  for- 
feiture existed,  even  though  the  vessel  was  enrolled  for  the  coasting 
trade  under  the  Act  of  Congress.  So  in  Smith  v.  Levimis,  8  N.  Y. 
472,  a  similar  Act  was  held  to  be  valid,  although  it  vested  certain  legis- 
lative powers  in  boards  of  supervisors,  authorizing  them  to  make  laws 
for  the  protection  of  shell  and  other  fish.  In  State  v.  Hoherts^  59  N. 
H.  256,  which  was  an  indictment  for  taking  fish  out  of  navigable  waters 
out  of  the  season  prescribed  bj-  statute,  it  was  said  by  the  court:  "At 
common  law  the  right  of  fishing  in  navigable  waters  was  common  to  all. 
The  taking  and  selling  of  certain  kinds  of  fish  and  game  at  certain  sea- 
sons of  the  3"ear  tended  to  the  destruction  of  the  privilege  or  right  b}' 
the  destruction  consequent  upon  the  unrestrained  exercise  of  the  right. 
This  is  regarded  as  injurious  to  the  communitj',  and,  therefore,  it  is 
within  the  authorit}-  of  the  legislature  to  impose  restriction  and  limita- 
tion upon  the  time  and  manner  of  taking  fish  and  game,  considered 
valuable  as  articles  of  food  or  merchandise.  For  this  purpose  fish  and 
game  laws  are  enacted.  The  power  to  enact  such  laws  has  long  been 
exercised,  and  so  beneficially  for  the  public  that  it  ought  not  now  to  be 
called  into  question."  Commomvealth  v.  Chapin,  5  Pick.  199  ;  McCready 
v.  Virginia,  94  U.  S.  391  ;  Vinton  v.  Welsh,  9  Pick.  92  ;  Common- 
icealth  v.  Essex  Co.,  13  Gray,  248;  Fheljjs  v.  Baceij,  60  N.  Y.  10; 
Holyoke  Co.  v.  Lyman,  15  Wall.  500  ;  Gentile  v.  State,  29  Ind.  409  ; 
State  V.  Leiois,  33  N.  ¥..  R.  1024. 

As  the  waters  referred  to  in  the  Act  are  unquestionably  within  the 
jurisdiction  of  the  State  of  New  York,  there  can  be  no  valid  objection 
to  a  law  regulating  the  manner  in  which  fishing  in  these  waters  shall  be 
carried  on.  JInoher  v.  Cunivhings,  20  Johns.  91.  Tl'e  ^hity  of  pre- 
serving the  fishoi-ies  of  a  State  from  extinction,  by  prohibiting  exhaus- 
tive methods  of  fishing,  or  the  use  of  such  destructive  instruments  as 
are  likely  to  result  in  the  extermination  of  the  young  as  well  as  the 
mature  fish,  is  as  clear  as  its  power  to  secure  to  its  citizens,  as  far  as 
possible,  a  suppl}-  of  an}'  other  wholesome  food. 

The  main,  and  only  real  difficulty  connected  with  the  Act  in  question 
as  in  its  declaration  that  any  net,  &c.,  maintained  in  violation  of  any 


CHAP,  v.]  LAWTON   V.    STEELE.  821 

law  for  the  protection  of  fisheries,  is  to  be  treated  as  a  public  nuisance, 
"  ami  may  be  abated  and  summarily  destroyed  by  any  person,  and  it 
shall  be  the  duty  of  each  and  every  protector  aforesaid  and  every  oa me 
constable  to  seize,  remove,  and  forthwith  destroy  the  same."  The. 
leuislaturc,  however,  undoubtedly  possessed  the  power  not  only  to  pro- 
hibit fishing  by  nets  in  these  waters,  but  to  make  it  a  criminal  olfence, 
q,nd  to  take  such  measures  as  were  reasonable  and  necessary"  to  prevent 
such  offences  in  the  future.  It  certainly  could  not  do  this  more  etl'ec- 
tually  than  by  dcstroying~the  means  of  the  offence.  If  the  nets  were 
beiuLi'  used  in  a  manner  detrimental  to  tlie  Interests  of  the  public,  we 
think  it  was  within  the  ijower  of  the  legislature  to  declare  them  to  Fe 
nuisances,  and  to  authorize  the  ofBcers  of  the  State  to  abate  them .  ITa t -t 
V.  The  Mayor,  9  Wend.  571  ;  Meeker  v.  Van  Bensselaer,  15  "Wend. 
397.  An  Act  of  the  Legislature  which  has  for  its  object  the  preserva- 
tion of  the  public  interests  against  the  illegal  depredations  of  private 
individuals  ought  to  be  sustained,  unless  it  is  plainly  violative  of  the 
Constitution,  or  subversive  of  private  rights.  In  this  case  there  can  be 
no  doubt  of  the  right  of  the  legislature  to  authorize  judicial  proceedings 
to  be  taken  for  the  condemnation  of  tlie  nets  in  question,  and  their  sale 
or  destruction  by  process  of  law.  Congress  has  assimied  this  power  in 
a  large  number  of  cases,  b}^  authorizing  the  condemnation  of  property 
Avhich  has  been  made  use  of  for  the  purpose  of  defrauding  the  revenue. 
Examples  of  this  are  vessels  illegally  registered  or  owned,  or  employed 
in  smuggling  or  other  illegal  traffic ;  distilleries  or  breweries  illegally 
carried  on  or  operated,  and  buildings  standing  upon  or  near  the  boundar}' 
line  between  the  United  States  and  another  countr}',  and  used  as  depots 
for  smuggling  goods.  In  all  these  cases,  however,  the  forfeiture  was 
decreed  by  judicial  proceeding.  But  where  the  property  is  of  Httle 
value,  and  its  use  for  the  illegal  purpose  is  clear,  the  legi.^lntiirp  may 
declare  it  to  be  a  nuisance,  and  subject  to  summary  abatement..  In- 
stances of  this  are  the  power  to  kill  diseased  cattle  ;  to  pull  down  houses 
in  the  path  of  conflagrations  ;  the  destruction  of  deca3'ed  fruit  or  fish  or 
unwholesome  meats,  of  infected  clothing,  obscene  books  or  pictures,  or 
instruments  which  can  only  be  used  for  illegal  purposes.  While  the 
legislature  has  no  right  arbitrarily  to  declare  that  to  be  a  nuisance 
Avhich  is  clearl}^  not  so,  a  good  deal  must  be  left  to  its  discretion  in  that 
regard,  and  if  the  object  to  be  accomplished  is  conducive  to  the  |)u1)lic 
interests,  it  may  exercise  a  large  liberty  of  choice  in  the  means  em- 
ployed. Newark,  &c.  Rioij  Co.  v.  Hunt,  50  N.  J.  Law,  308  ;  Ji/asier 
V.  Miller,  10  Hun,  435;  Mouse's  Case,  12  Coke,  62;  ^Stone  v.  The 
Mayor,  25  Wend.  173  ;  Am.  Print  Works  v.  Lawrence,  21  N.  J.  Law, 
248;  Same  v.  Sam£,  23  Id.  590. 

I_t^is  not  eas}'  to  draw  the  line  between  cases  where  property  illegally 
used  may  be  destroyed  summarily  and  where  judicial  proceedings  are 
necessary  for  its  condemnation.  LQhe  jDropertj*  were  of  great  value, 
as.  for  instance,  if  it  were  a  vessel  em|)loyed  for  snmggling  or  other 
illegal  purposes,  it  would  be  putting  a  dangerous  power  in  the  hands  of 


822  LAWTON    iJ.    STEELE.  [CIIAP.  V- 

/lUCiAji^       a  custom  ofllcer  to  permit  him  to  sell  or  destroy  it  as  a  public  nuisai_ice, 

,    /T-i^      ^     and   the  owner  would  have  good  reason  to  complain  of_ such  act  as 

T  ^  p^v^  •  depriving  him  of  his  property-  without  due  process_of  Javv.     But  where 

,.  ..^  the  property  is  of'  trilling  value,  and  its  destruction  is  necessary  to  ellcct 

'/      '      t  ■        the  oliji'et  oC  a  certain  statute,  we  tliink  it  is  within  the   power  ai  tlm 

leaislature  to  order  itssummary  abatement.     For  instance,  i(  tlie  legis- 

c}l^ c^>i  "i-i  ]    lature  should  prohibit  the  killing  of  iish  by  explosive  shells,  and  should 

order  the  cartridges  so  used  to  be  destroyed,  it  would  seem  like  belittling 

the  dignity  of  the  judiciary  to  require  such  destruction  to  be  preceded 

by  a  solemn  condemnation  in  a  court  of  justice.     The  same  remark 

might  be  made  of  the  cards,  chips,  and  dice  of  a  gambling-room. 

The  value  of  the  nets  in  question  was  but  $15  apiece.  The  cost_pf 
condemning  one  (iiiul  the  use  of  one  is  as  illegal  as  the  use  of  a  dozen), 
by  judicial  proceedinus,  would  lurgxly  exceed  the  \  aluc  of  the  net,  and 
doubtless  the  State  would,  in  many  cases^  be  deterred  from  executing 
the  law  by  the  expense.  They  could  only  be  removed  from  the  water 
with  difficulty,  and  were  liable  to  injury  in  the  process  of  removal. 
The  object  of  the  law  is  undoubtedly  a  beneficent  one,  and  the  State 
ought  not  to  be  hampered  in  its  enforcement  by  the  application  of  con- 
stitutional provisions  which  are  intended  for  the  protection  of  substan- 
tial rights  of  property.  It  is  evident  that  the  efficacy  of  this  statute 
would  be  very  seriously  impaired  by  requiring  every  net  illegally  used 
to  be  carefully  taken  from  the  water,  carried  before  a  court  or  magis- 
trate, notice  of  the  seizure  to  be  given  by  publication,  and  regular  judi- 
cial proceedings  to  be  instituted  for  its  condemnation . 

There  is  not  a  State  in  the  Union  which  has  not  a  constitutional  pro- 
vision entitling  persons  charged  with  crime  to  a  trial  by  jur3-,  and  yet 
from  time  immemorial  the  practice  has  been  to  try  persons  charged  wij.U 
petty  offences  before  aj)olicejiiagistrate,  who  not  only  passes  upon  the 
question  of  guilt,  but  metes  out  the  proper  punishment.  This  has 
ne^'er  been  treated  as  an  infraction  of  the  Constitution,  though  techni- 
cally  a  person  may^  in  this  way  be  deprived  of  his  liberty  without  the 
intervention  of  a  jury.  Callan  v.  Wilson,  127  U.  S.  540,  and  cases 
cited.  So  the  summary  abatement  of  nuisances  without  judicial  proopss 
or  proceeding  was  well  known  to  the  common  law  long  prior  to  the 
adoption  of  the  Constitution,  and  it  has  never  been  supposed  that  the 
constitutional  provision  in  question  in  this  case  was  intended  to  inte r- 
fere  with  the  established  principles  in  that  regard . 

Nor  is  a  person  whose  property  is  seized  under  the  Act  in  question 
without  his  legal  remedy.  If  in  fact  his  property  has  been  used  in  vio- 
lation  of  the  Act,  he  has  no  just  reason  to  complain  ;  if  not,  he  may 
replevy  his  nets  from  the  officer  seizing  them,  or,  if  they  have  been 
destroyed,  may  have  his  action  for  their  value.  In  such  cases  the  bur- 
den would  be  upon  the  defendant  to  prove  a  justification  under  the 
statute.  As  was  said  by  the  Supreme  Court  of  New  Jersey  in  a  simi- 
lar case  {Avi.  Print  Works  v.  Lawrence,  21  N.  J.  Law,  248,  259)  : 
"The  party  is  not,  in  point  of  fact,  deprived  of  a  trial  by  jur}-.     The 


CHAP,  v.]  LAWTON   V.   STEELE.  823 

evidence  necessary  to  sustain  tlie  defence  is  cliangcd.  Even  if  the 
party  were  deprived  of  d  trial  by  jury,  tlie  statute  is  not,  tlierefore, 
necessarily  unconstitutional."  Indeed,  it  is  scarcely  possible  that  any 
actual  injustice  could  be  done  in  the  practical  administration  of  the 
Act. 

It  is  said,  however,  that  the  nets  are  not  in  themselves  a  nuisance_^ 
but  are  i^erfectly  lawful  acts  of  manufacture,  and  are  ordinarily  used  for 
a  lawful  purpose.  Tliis  is,  however,  by  no  means  a  conclusive  answer. 
Many  articles,  such,  for  instance,  as  cards,  dice,  and  other  articles  used 
for  gambling  purposes,  are  perfectly  harmless  in  themselves,  but  may 
become  nuisances  by  being  put  to  an  illegal  use,  and  in  such  cases  fall 
within  the  ban  of  the  law  and  may  be  summarily  destroyed.  It  is  true 
that  this  rule  does  not  always  follow  from  the  illegal  use  of  a  harmless 
article.  A  house  may  not  be  torn  down  because  it  is  put  to  an  illegal  use, 
since  it  may  be  as  readily  used  for  a  lawful  purpose  {Ely  v.  Supervisors, 
36  N.  Y.  297),  but  where  minor  articles  of  personal  property  are  de- 
voted to  such  use  the  fact  that  they  may  be  used  for  a  lawful  puTpose 
would  not  deprive  the  legislature  of  the  power  to  destroy  them.  Tlj,e 
p^Offieu  althe  legislature  to  declare  that  whicli  is  perfectly  iiinoccnt_in 
itself  to  be  unlawful  is  beyond  question  (PeorAe  v.  West,  lOG  N.  Y. 
293),  and  in  such  case  the  legislature  may  annex  to  the  prohibited  act 
all  theUicidents  ofa  criminal  offence,  including  the  destruction  of  prop- 
erty denounced  by  it  as  a  public  nuisance. 

In  WeUer~V.Snover,  42  N.  J.  Law,  341,  it  was  held  that  a  fish  war- 
den for  a  county,  appointed  by  the  Governor,  had  the  right,  under  an  Act 
of  the  Legislature,  to  enter  upon  land  and  destroy  a  fish  basket  con- 
structed in  violation  of  the  statute,  together  with  the  materials  of  which 
it  was  composed,  so  that  it  might  not  again  be  used.  It  was  stated  in 
that  case  that  "  after  a  statute  has  declared  an  invasion  of  a  public 
right  to  be  a  nuisance  it  may  be  abated  by  the  destruction  of  the  object 
used  to  effect  it.  The  person  who,  with  actual  or  constructive  notice 
of  the  law,  sets  up  such  nuisance  cannot  sue  the  officer  whose  duty  it 
has  been  made  by  the  statute  to  execute  its  provisions."  So  in  Wil- 
liams V.  Blackwall,  2  H.  &  C.  33,  the  right  to  take  possession  of  or 
destroy  any  engine  placed  or  used  for  catching  salmon  in  contravention 
of  law  was  held  to  extend  to  all  persons,  and  was  not  limited  to  con- 
servators or  officers  appointed  under  the  Act. 

It  is  true  there  are  several  cases  of  a  contrary  purport.  Some  of 
these  cases,  however,  may  be  explained  upon  tlie  ground  that  the  prop- 
erty seized  was  of  considerable  value  {leek  v.  A?iderson,  57  Cal.  251, 
boats  as  well  as  nets  ;  Dunn  v.  Burleigh,  62  Me.  24,  teams  and  sup- 
plies in  lumbering  ;  King  v.  Haijes,  80  Me.  206,  a  horse)  —  in  others  the 
court  seems  to  have  taken  a  more  technical  view  of  the  law  than  the 
necessities  of  the  case  or  an  adequate  protection  of  the  owner  required. 
Lowry  v.  Raimvater,  70  Mo.  152  ;  State  v.  Bobbins,  124  Ind.  308  ; 
Ridgeivay  v.  West,  60  Ind.  371. 

Upon  the  whole,  we  agree  with  the  Court  of  Appeals  in  holding  this 


824  LAWTON   V.    STEELE.  [CHAP.  V. 

Act  to  be  constitutional,  and  the  judgment  of  the  Supreme  Court  is, 
therefore  Affirmed. 

Mk.  Chief  Justice  Fullek  (with  whom  concurred  Mil.  Justice  Field 
and  Mu.  Justice  Buewek)  dissenting. 

In  my  opinion  theXegislation^iu  question,  so  far  as  it  authorizes  the 
suniuiar>"  destruction  of  fishing-nets  and  i)roh}bits  any  action  for  dam- 
ages on  account  of  s u ch  destruction,  is  unconstitutional . 

Fishinir-nets  are  in  themselves  articles  of  property  entitled  to  the  i)ro- 
tection  of  the  law,  and  I  am  unwilling  to  concede  to  the  legislature  of  a 
State  the  power  to  declare  them  public  nuisances,  even  wlion  put  to  irsc 
in  a  manner  forbidden  by  statute,  and  on  that  ground  to  Justify  tlfeir 
abatement  by  seizure  and  destruction  without  process,  notice,  or  the 
observance  of  any  judicial  form. 

The  police  power  rests  upon  necessity  and  the  right  of  self-protection 
but  private  property  cannot  be  arbitrarily  invaded  under  the  mere  guise 
of  police  regulation,  nor  forfeited  for  the  alleged  violation  of  law  by.  its 
owner,  nor  destroyed  by  way  of  penalty  inflicted  U|)on  him,  without 
opportunity  to  be  heard.. 

It  is  not  doubted  that  the  abatement  of  a  nuisance  must  be  limited 
to  the  necessity  of  the  occasion,  and,  as  the  illegal  use  of  fishing-nets 
would  be  terminated  by  their  withdrawal  from  the  water  and  the  piiblie 
be  fully  ijrotectcd  by  their  detention,  the  lack  of  necessity  fur  the  .arbi- 
trary proceedings  prescribed  seems  tome  too  obvious  to  be  ignored. 
Nor  do  I  perceive  that  the  difliculty  which  may  attend  their  removal, 
the  liability  to  injury  in  the  process,  and  their  comparatively  small  valii^ 
ordinaril}',  affect  the  principle,  or  tend  to  show  their  summary  destruc- 
tion to  be  reasonably  essential  to  the  supi)ression  of  the  illegal  .use. 
Indeed,  I  think  that  that  argument  is  to  be  deprecated  as  weakening  the 
importance  of  the  preservation,  without  impairment  in  ever  so  slight  a 
degree,  of  constitutional  guarantees. 

I  am,  therefore,  constrained  to  withhold  my  assent  to  the  judgment 
just  announced,  and  am  authorized  to  say  that  Mr.  Justice  Field  and 
Mr.  Justice  Brewer  concur  in  this  dissent.^ 

1  See  State  v.  Lewis,  33  N.  E.  Rep.  1024  (Ind.,  April,  1893),  holding  valid  a  statute 
making  it  criminal  to  have  in  one's  possession  a  gill  net  or  seine,  with  certain  excep- 
tions.   And  so  as  to  gaining  implements,  Hastings  v.  Haw/,  85  Mich.  87  (1891).  —  Ed. 


CHAP,  v.]  GODDAKD,   PETITIONER. S25. 

GODDARD,  Petitioner.         \      j^(l^jJjsj^^^  mj;l^|-»o^ 

Supreme  Judicial  Court  of  Massacuusetts.  \1835.    \^y,j^j\jj\,\^  <v-f    w'vu. 

\  ^  I 

[IG  Pick.  504.]  \^       ^  pjjj^j^<.  \<:ir^rM. 

Petition  for  a  certiorari  to  the   Municipal  Court  for  the  city  of  ^^jjjj\,  ^^ 

In  Januaiy  1835,  the  city  marshal  of  Boston  made  a  complaint  to  the 
Police  Court,  in  the  name  of  the  Commonwealth,  against  Goddard,  as    ^Iv-^xr  /^ 
the  occupant  of  a  house  and  lot  of  land  situate  on  Kingston  Street,  in    /^  ^^  V/^ 
the  city  of  Boston,  and  not  in  that  part  of  the  citj'  called  South  Boston,    n  u 

for  neglecting  and  refusing  to  remove  the  snow  from  the  sidewalk  in  vMivaA,  lU^ 
Kingston  Street,  adjacent  to  his  land.  The  defendant  was  sentenced*  L  1  ^^/tr^ 
to  pay  a  fine  and  costs,  and  he  appealed  to  the  Municipal  Court.  N 

At  the  trial  in  that  court  it  was  admitted,  that  the  facts  alleged  in  AaaaA^'^  (J' 
the  complaint  were  true.     S.  D.  Parker^  Count}'  Attorne}',  and  B.  M.  j\^  yJ    Os- 
Curtis^  in  support  of  the  complaint,  read  the  17th  section  of  the  city        >    'O 
ordinance  passed  on  August  22,  1833,  viz.,  that  "■  the  tenant,  occupant,   Qj^vJ^ 
and  in  case  there  shall  be  no  tenant,  the  owner  of  an^-  building  or  lot   i         l<jO^ 
of  land  bordering  on  any  street,  lane,  court,  or  public  place  within  the    Y 
city  (excepting  that  part  of  the  cit}'  called  South  Boston),  where  there    (^^-^^^ 
is  an}'  footwa}'  or  sidewalk,  shall  after  the  ceasing  to  fall  of  any  snow,  ^ 

if  in  the  day  time,  within  six  houi's,  and  if  in  the  night  time,  before  two  Ir^  ktilfe. 
of  the  clock  in  the  afternoon  succeeding,  cause  the  same  to  be  removed       .    ■' 
^therefrom  ;  and  in  default  thereof  shall  forfeit  and  pay  a  sum  not  less  V^^  ^"^ 


than  one  dollar,  and  not  more  than  four  dollars,  for  each  and  ever}'  day  X-  L^^  ti. 
that  the  same  shall  afterwards  remain  on  such  footway  or  sidewalk  ;  "  (]  ^ 
also,  the  clause  from  the  15th  section  of  the  city  charter  (St.  1821,  Uaax  ^y^' 
c.  110,)  which  declares,  "that  the  mayor  and  aldermen  and  common  ^  4-_^  ^jL 
council  of  the  said  city  shall  have  power  to  make  all  such  needful  and  "^^"^^ 
salutary  by-laws,  as  towns,  by  the  laws  of  this  Commonwealth,  have  i/>-fCwviuA 
power  to  make  and  establish  ;  and  to  annex  penalties,  not  exceeding  tnj^kf-i 

twenty  dollars,  for  the  breach  thereof;"  also  the  clause  in  St.  1785,   ^^^^^^ 
c.  75,  §  7,  which  empowers  the  inhabitants  of  any  town  "  to  make  and    1}U<^  tJ^  ^ 
agree  upon  such  necessary  rules,  orders,  and  by-laws  for  the  direct-         ,ijix-v^ 
ing,  managing,  and  ordering  the  prudential  affairs  of  such  towns,  as 
they  shall  judge  most  conducive  to  the  peace,  welfare  and  good  order  ^'Wft^'^  ^ 
thereof."  ...  x4    ^k  ' h/ 

The  defendant's  counsel  moved  the  court  to  instruct  the  jury,  that     ^^ 
the  by-law  in  question  was  inoperative  and  void.  .   .   .   But  the  judge    /vwlz/^^^T^ 
instructed  the  jury  that  the  by-law  was  valid  and  effectual.  ...  I 

The  jury  found  a  verdict  against  the  defendant,  and  he  was  sentenced    ^^^^  ama/-'| 
to  pay  a  fine  of  four  dollars  and  costs  of  suit.  -f  u;j  tv^  A*^ 

The  defendant  filed   exceptions   to  the   instructions  of  the  judge,        .      , 
and  now  petitioned  for  a  certiorari  in  order  that  the  sentence  might  be  /Q/w^U^ 


UA^i 


r  -   -   »  ^'  V**''^-.  wvwx-  •*-■*-        *'  **  -'"*-^       'X,.*^  »r»r»,.,         ^,__^^      ^ 


826  GODDAKD,   PETITIONER.  [CHAP.  V. 


JBartlett  insisted  on  the  exceptions. 

C.  -P.  Curtis,  in  beluilf  of  the  cit^'  of  Boston. 

Shaw,  C.  J.,  dcUvered  the  opinion  of  the  court.     No  question  is 

niude  of  the  facts  in  this  case,  but  it  is  conceded,  that  the  petitioner 

did  not  clear  the  sidewalk  in  front  of  his  land,  in  the  manner  required 

bj-  the  by-law  of  the  cit}',  and  he  justifies  this  on  the  groiuid  that  the 

law  itself  is  invalid  and  of  no  binding  force.     For  the  purpose  of  having 

this  question  deliberately  considered,  and  for  the  purpose  of  taking 

^vM  several  exceptions  to  the  course   of   proceedings,  the  petitioner  has 

^  j)ra3"ed  for  a  writ  of  certiorari  to  the  Municipal  Court.  .  .  . 

^^^/7^    3.  Another,  and  perhaps  the  most  important  objection,  is,  that  the 

L^  ^-dH/rby-law  is  one  imposing  a  tax  or  duty  upon  the  citizens,  and  it  is  a  vio- 

, Elation  of  the  Constitution  in  this,  that  it  is  partial,  and  unequal,  and 

contravenes  that  fundamental  maxim   of   our  social   system,  that  all 

burdens  and  taxes  laid  on  the  people  for  the  public  good  shall  be 

equal. 

But  the  court  are  all  of  opinion,  that  the  by-law  in  question  is  not 
obnoxious  to  this  objection. 

It  is  not  speaking  strictly,  to  characterize  this  cit}'  ordinance  as  a 
law  levying  a  tax,  the  direct  or  principal  object  of  which  is,  the  raising 
of  revenue.  It  imposes  a  dut}'  upon  a  large  class  of  persons,  the  perform- 
ance of  which  requires  some  labor  and  expense,  and  therefore  indirectlj' 
operates  as  a  law  creating  a  burden.  But  we  think  it  is  lather  to  be 
regarded  as  a  police  regulation,  requiring  a  duty  to  be  performed,  highly 
salutar}'  and  advantageous  to  the  citizens  of  a  populous  and  closely 
built  city,  and  which  is  imposed  upon  them  because  the}'  are  so  situated 
as  that  the}'  can  most  promptly  and  conveniently  perform  it,  and  it 
is  laid,  not  upon  a  few,  but  upon  a  numerous  class,  all  those  who  are  so 
situated,  and  equally  upon  all  who  are  within  the  description  composing 
the  class. 

It  is  said  to  be  unequal,  because  it  singles  out  a  particular  class  of 
citizens,  to  wit,  the  owners  and  occupiers  of  real  estate,  and  imposes 
the  duty  exclusivel}'  upon  them. 

If  this  were  an  arbitrary  selection  of  a  class  of  citizens,  without  ref- 
erence to  their  peculiar  fitness  and  ability  to  perform  the  dut}',  the 
objection  would  have  great  weight,  as  for  instance,  if  the  expense  of 
clearing  the  streets  of  snow  were  imposed  upon  the  mechanics,  or  mer- 
chants, or  any  other  distinct  class  of  citizens,  between  whose  conveni- 
ence and  accommodation,  and  the  labor  to  be  done,  there  is  no  natural 
relation.  But  suppose  there  is  a  class  of  citizens  who  will  themselves 
commonly  derive  a  benefit  from  the  performance  of  some  public  duty, 
"we  can  see  no  inequality  in  requiring  that  all  those  who  will  derive 
such  benefit,  shall  by  a  general  and  equal  law  be  required  to  do  it. 
Supposing  a  by-law  should  require  every  inhabitant,  who  keeps  a  cart, 
truck  or  other  team,  or  a  coach  or  other  carriage,  to  turn  out  himself 
or  send  a  man,  with  one  or  more  horses,  after  each  heavy  fall  of  snow, 
to  assist  in  levelling  it.     Although  other  citizens  would  derive  a  benefit, 


CHAP,  v.]  GODDARD,   PETITIONEK.  827 

yet  as  these  derive  some  peculiar  benefit,  accompanied  with  the  ability, 
I  can  at  present  perceive  no  valid  objection  to  a  by-law  requiring  it,  on 
the  ground  of  iue(iuality.  Supposing  a  general  regulation,  that  at 
certain  seasons  of  the  year,  every  shopkeeper  should  sprinkle  the  side- 
walk in  front  of  his  own  shop,  or  sweep  it,  inasmuch  as  he  has  a  peculiar 
benefit,  and  as  the  dut}-  is  equal  upon  all  who  come  within  the  descrip- 
tion, it  seems  to  us  to  be  equal,  in  the  sense  in  which  the  law  requires 
all  such  burdens  to  be  equal.  And  it  appears  to  us  that  the  case  before 
us  is  similar.  Although  the  sidewalk  is  part  of  the  public  street,  and 
the  public  have  an  easement  in  it,  yet  the  adjacent  occupant  often 
is  the  owner  of  the  fee,  and  generally  has  some  peculiar  interest  in  it, 
and  benefit  from  it,  distinct  from  that  which  he  enjoys  in  common  with 
the  rest  of  the  comnuuiit}'.  He  has  this  interest  and  benefit,  often  in 
accommodating  his  cellar-door  and  steps,  a  passage  for  fuel,  and  the 
passage  to  and  from  his  own  house  to  the  street.  To  some  purposes, 
therefore,  it  is  denominated  his  sidewalk.  For  his  own  accommodation, 
be  would  have  an  interest  in  clearing  the  snow  from  his  own  door. 
The  owners  and  occupiers  of  house-lots  and  other  real-estate,  therefore, 
have  an  interest  in  the  performance  of  this  duty,  peculiar  and  somewhat 
distinct  from  that  of  the  rest  of  the  communit}'. 

Besides,  from  their  situation,  the}'  have  the  power  and  ability  to 
perform  this  duty,  with  the  promptness  which  the  benefit  of  the  com- 
munity requires,  and  the  duty  is  divided,  distributed  and  apportioned 
upon  so  large  a  number,  that  it  can  be  done  promptly'  and  effectuall}', 
and  without  imposing  a  very  severe  burden  upon  any  one.  Supposing 
a  by-law  should  require,  what  is  often  done,  in  practice,  that  upon  an 
alarm  of  fire  in  the  night,  all  householders,  on  streets  leading  to  and 
near  tlie  fire,  should  exhibit  a  liglit.  This  would  seem  to  be  reasonable. 
Or  that  all  the  owners  or  occupiers  of  dwelling-houses,  having  a  well 
and  pump,  should  keep  them  in  repair  at  their  own  expense,  to  be  used 
in  case  of  fire.  It  would  operate  partially,  but  it  seems  to  us  not 
unequal,  in  the  sense  in  which  we  are  using  that  term.  The  city  might 
keep  persons  ready  in  every  street,  to  light  torches  and  flambeaux  in 
case  of  fire,  and  the  expense  be  paid  from  the  treasury  ;  still,  it  appears 
to  me,  that  as  householders  would  derive  a  benefit  from  the  operation 
of  this  general  regulation,  as  their  local  situation  puts  it  peculiarl}' 
within  their  power  and  ability  to  perform  it  without  great  expense,  and 
as  it  is  equal  in  its  terms,  it  would  not  be  obnoxious  to  the  charge  of 
being  invalid  for  partialit}'  and  inequality. 

In  all  these  cases  the  answer  to  the  objection  of  partialit}-  and  ine- 
quality is,  that  the  duty  required  is  a  dut}^  upon  the  person  in  respect  to 
the  propert}'  which  he  holds,  occupies  and  enjoys,  under  the  protection 
and  benefit  of  the  laws,  that  it  operates  upon  each  and  all  in  their  turns, 
as  they  become  owners  or  occupiers  of  such  estates,  and  it  ceases  to  be 
required  of  them,  when  they  cease  to  be  tluis  holders  and  occupiers  of 
the  estate,  in  respect  to  which  the  duty  is  required.  In  this  respect  it 
is  like  a  land  tax,  or  house  tax,  it  does  not  bear  upon  owners  of  per- 


828  GRIDLEY  V.   BLOOMIXGTON.  [CHAP.  V. 

sonal  property,  and  therefore  does  not  bear  upon  all  citizens  alike,  but 
is  not  on  that  account  unequal  or  partial,  in  the  sense  contemplated  b}' 
the  Declaration  of  Rights,  requiring  all  taxes  and  burdens  to  be  equal 
and  impartial. 

The  court  are  all  of  opinion,  that  as  a  b3'-la\v,  the  regulation  in  ques- 
tion was  a  reasonable  one,  that  it  was  not  repugnant  to  the  Constitution 
or  laws  of  the  Commonwealth,  and  that  the  conviction  was  right. 

Fetition  dismissed. 

'    I-       u   />^  r     GRIDLEY  V.  BLOOMINGTON.      Jf^c^  ^H^  ^"^^     ^  iP 

U^Julu^<^  U^^^AMn^m-rUi  ^^ t^ncd- 

'j  '  ^  ,  /  Supreme  Court  of  Illikois.     1878.  j^^  "titc  QM^-*^  , 

yf/t        "JJ  '  [88///.  554.] 

Appeal  from  the  Circuit  Court  of  McLean  Count}'. 
Vi/L  (UJ^l       Complaint,  under  oath,  M^as  made,  charging  that  defendant  permitted 
'   iIjI^c,    s"Ow  to  remain  upon  the  sidewalk  abutting  on  premises  occupied  by 
r  /    him  as  a  ^'wood  and  stable  lot,"  contrary  to  an  ordinance  of  the  city 

'K.  ^vc  which  provides,  that  "whoever,  being  the  occupant  of  an}-  occupied 
premises,  or  the  owner  of  any  vacant  premises,  ghall  suffer  any  snow  to 
\MfX/J^Ji  remain  on  any  sidewalk  or  footway  adjacent  thereto  longer  than  six 
I  '  ./.j^bonrs  from  the  time  it  ceases  falling,  or  if  the  cessation  be  in  the  night 
'  time,  then  longer  than  six  hours  after  sunrise  on  the  next  morning,  shall 
'^^f^JJjJL    be  fined  five  dollars,  and  be  subject  to  a  like  penalty  for  each  day  such 

snow  so  remains  after  the  first  penalty  has  been  incurred." 
■<  i^^  Proof  was  made  that  defendant,  on  the  16th  day  of  February,  1875, 

AMXWf      owned  and  occupied  Lot  3,  in  White's  addition  to  Bloomington,  as  a  wood 
J  and  stable  lot ;  that  there  was  a  sidewalk  on  the  south  side  of  the  lot, 

r  ,  which  abutted  on  Grove  Street ;  that  defendant  did  not  remove  the 
^  -'^^  snow  that  had  fallen  on  the  sidewalk,  two  or  three  days  before,  to  the 
(Ar^MjJ^ti  depth  of  several  inches,  within  six  hours  after  sunrise  on  the  day  men- 
l  tinnpd  in  the  complaint,  and  that  the  sidewalk  in  question  was  within 
iX  /t/L  the  corporate  limits  of  the  city. 
\J^<yLX         It  was  admitted  for  the  defence,  that  White's  addition  to  Bloomington 

.  V.         was  laid  out  by  James  White  on  the  7th  day  of  April,  1836. 
U/k  vf  On  the  trial,  defendant  was  found  guilty,  and  fined  in  the  sum  of  three 

Mrvtvw.     dollars,  and  from  the  judgment  rendered  against  him  defendant  prosecutes 
'   ^  .    ■       his  appeal  to  this  court. 
AA^MUl^AA. .     jy-^.  jr  ]\£  Prince,  and  3fessrs.  Karr  &  Karr,  for  the  appellant, 

'  /  Mr.  Justice  Scott  delivered  the  opinion  of  the  court:  — 

^y-^  The  ordinance  under  which  defendant  was  prosecuted,  imposes  a  fine 

,K  ^  upon  any  one  who  shall  permit  snow  to  remain  upon  the  sidewalk  abut- 

sXtfu        ^^"§  premises  occupied  or  owned  by  him,  longer  than  a  period  of  six 
V  hours  after  it  ceases  to  fall,  or  if  the  cessation  is  in  the  night  time,  then 

k-   ^^      longer  than  six  hours  after  sunrise  on  the  next  morning.     The  yalidit}' 

rvk^rvJ^  tUu{<  vt    M<  ^\-C  -v^      AJU-aObA.  ^(cCL   tfvAv\    ft(ui^  ^  ^2A/^  Vp'  T^^  pi^' 


I 


'^*^"j        CHAF.  v.]  GUIDLEY   V.    BLOOMINGTOX.  829 

^     ci      of  that  ordinance  is  the  onl}-  question  made  on  the  argument.     It  was 

^    ^      admitted  the  lot  occupied  bj'  defendant  was  one  of  an  addition  to 

J  ""^      Bloomington  that  was  laid  out  in  183G,  and  hence  it  follows,  under  the 

T   "^     decisions  of  this  court,  the  fee  of  the  street  in  front  of  the  premises  was 

V    jS     eitlier  in  the  original  proprietor  or  in  the  corporation.     lacUanapolis, 

'~^->  ^     Bloomington  &  Western  E.  R.  Co.  v.  Hartley,  G7  111.  439  ;  Gebhardt 

V.  Beeves,  75  Id.  301. 

tThe  public  had  an  easement  over  the  street  in  front  of  the  lot  occupied 
and  owned  b}-  defendant,  and  it  makes  no  difference,  so  far  as  this  deci- 
sion is  concerned,  wliether  the  fee  of  the  street  passed  by  the  plat  and 
^    :^    dedication  to  the  corporation,  or  whether  it  remained  in  the  original 
.^X   ^    proprietor.     It  is  plain  defendant  has  no  other  interest  in  the  street  in 
front  of  his  property  than  any  other  citizen  of  the  municipality.     The 
I  ^    ^   same  is  true  of  tlie  sidewalk.    It  is  a  part  of  the  street  set  ai)art  for  the 
exclusive  use  of  persons  travelling  on  foot,  and  is  as  much  under  the  con- 
trol of  the  municipal  government  as  the  street  itself.     The  owner  of  the 
^    adjacent  lot  is  under  no  more  obligation  to  keep  the  sidewalk  free  from 
-^  obstructions,  than  he  is  the  street  in  front  of  his  premises.     He  may 

">^  ^    not  himself  obstruct  either  so  as  to  impede  travel  on'  foot  or  in  car- 
-'^    ^    riaoes.     It  will  be  conceded  the  citizen  is  not  bound  to  keep  the  street 
■  ^    ^    in  front  of  his  premises  free  from  snow  or  anytliing  else  that  might 
;^   .^    impede  travel ;  then,  upon  what  |)rinciple  can  he  be  fined  for  not  remov- 
,       ^    ing  snow  or  other  obstruction  from  the  sidewalk  in  which  he  has  no 
-^  ^    interest  other  than  what  lie  has  in  common  with  all  other  persons  resi- 
■V         dent  in  the  citv?     It  is  certainly  not  upon  the  principle  under  which 
S^^    assessments  are  made  against  the  owner  for  building  sidewalks  in  front 
of  his  property.     The  cases  are  not  analogous./^  Such  assessments  are 
maintained  on  the  ground  the  sidewalk  enhances  the  value  of  the  prop- 
"^ i  erty,  and  to  the  extent  of  the  special  benefits  conferred  they  are  held  to 
^\be  valid.^) 

It  would  be  absurd  to  suppose  that  assessments  for  benefits  for  local 
^  improvements  could  be  enforced  by  fines  or  penalties,  as  in  the  ordl- 

3  nance  under  which  defendant  was  fined.  Nor  do  we  think  this  ordinance 
V  can  be  upheld  as  an  exercise  of  the  police  power  inherent  in  all  munici- 

^  ])al  governments.  It  was  expressly  decided  by  this  court,  in  City  of 
V  Ottawa  V.  Spencer,  40  111.  211,  tliat  local  improvements  of  either  side- 
C^  walks  or  streets  cannot  be  compelled,  under  the  general  police  power. 
The  legislature  must  afl!brd  the  necessary-  power  for  constructing  all 
cv  needful  improvements,  subject  to  constitutional  limitations;  and  when 
•  J   one  mode  of  making  such  improvements  is  sanctioned  by  the  Constitution, 

4  no  other  can  be  adopted. 
^  ^      Keeping  streets  and  sidewalks  in  repair,  and  free  from  obstructions 

that  impede  travel  or  render  it  dangerous,  is  referable  to  the  same  power 

'   as  for  constructing  new  improvements.     The  sidewn.lk^  as  was  declared 

^(  hi  the  case  cited,  is  as  much  a  public  highway,  free  to  the  use  of  all,  as 

5  the  street  itself,  and,  upon  principle,  it  follows,  the  citizen  cannot  be 
^  laid  under  obligations,  under  our  laws,  to  keep  it  free  froiu  obstructions 
V 


\.l 


830  GRIDLEY  V.   BLOOMINGTON.  [CHAP.  V. 

in  front  of  his  piopcrty  at  bis  own  expense,  any  more  than  the  street 
itself,  either  by  the  exercise  of  the  police  power  or  by  Ones  and  penalties 
im|)Osed  by  ordinance,  or  by  direct  legislative  action. 

Our  conclusion  is,  the  ordinance  in  question  is  invalid,  and  the  judg- 
meut  must  be  reversed  and  the  cause  remanded. 

Jaihjment  reversed} 

1  The  doctriue  of  this  case  was  affirmed  in  Chicago  v.  O'Brien,  111  111.  532  (1884). 
The  court  (Sciiolfield,  C.  J.)  said:  "  It  is  couceded  by  couusel  for  appellant  that 
this  court,  in  Gridley  v.  Citu  of  Bloom'nujton,  88  111.  554,  decided  the  only  question 
involved  in  this  case  (namely,  the  validity  of  the  ordinance  under  which  the  suit  is 
prosecuted)  against  appellant;  but  they  contend  that  decision  is  based  upon  incorrect 
grounds,  and  should  therefore  be  overruled.  Tliey  contend  that  the  ordinance  is  but 
a  pjoper  police  regulation,  and  tiiat,  as  such,  it  should  be  sustained.  In  support  of 
this  position  they  cite  BonsaU  et  iix.  v.  Maijor,  etc.,  19  Ohio,  418;  Pdxton  v.  Sweet,  13 
N.J.  (1  Green)  196;  Mai/or,  etc.  v.  Mabernj,  6  Humph.  368;  Washington  v.  Mai/or, 
etc.,  1  Swau  (Tenn.),  177;  Woodbridge  v.  Citg  of  Detroit,  8  Mich.  274;  and  other 
cases. 

"  In  City  of  Chicago  v.  Lamed,  34  111.  203,  —  a  case  very  elaborately  argued  by  able 
counsel,  —  the  principle  involved  in  the  decisions  of  these  cases  was  carefully  considered, 
and  it  was  held  they  could  not  apj)ly  here,  —  that  they  were  decided  under  constitutions 
so  materially  different  from  ours,  that  the  same  line  of  reasoning  is  not  applicable  to 
both.  And  in  City  of  Ottawa  v.  Spencer,  40  111.  211,  which  was  a  proceeding  to  charge 
the  adjacent  lot-owner  with  the  cost  of  building  a  sidewalk,  the  same  question  was 
again  before  the  court,  and  it  was  then  insisted,  as  it  is  now,  tliat  the  charges  may  be 
sustained  as  within  the  police  power,  but  the  position  was  held  untenable.  In  passing 
upon  this  point,  it  was  there  said  :  '  It  is  also  urged  that  this  may  be  referred  to  the 
police  power  of  the  State,  which  has  been  delegated  to  the  city,  and  may  therefore  be 
properly  exercised ;  and  in  support  of  the  proposition  we  are  referred  to  the  decisions 
of  the  Supreme  Court  of  Tennessee  :  Mayor,  etc.  v.  Maberry,  6  Humph.  368;  Waslting- 
ton  V.  The  Mayor  and  Aldermen  of  Nashville,  1  Swan,  177;  White  v.  The  Mayor  and 
Aldermen  of  Xashville,  2  Id.  364.  These  cases  go  to  the  length  of  sustaining  the  doc- 
trine contended  for  by  plaintiffs  in  error.  They  announce  the  doctrine  that  such 
improvements  may  be  compelled  under  the  general  police  power.  If  this  be  so,  by  an 
exercise  of  the  same  power  we  presume  that  the  owner  could  be  compelled  to  con- 
struct and  keep  in  repair  public  roads,  bridges,  and  culverts  fronting  upon  or  running 
through  his  lands,  or  the  owner  of  a  citj^  or  village  lot  could  be  compelled  to  make  and 
repair  the  street  in  front  of  his  property.  A  sidewalk  is  a  portion  of  a  public  high- 
way, appropriated,  it  is  true,  to  pedestrians  alone,  but  still  open  and  free  to  all  per- 
sons desiring  to  use  and  enjoy  it  as  a  public  highway.  It  is  as  much  a  public  highway 
in  the  mode  of  its  use  as  the  street  itself.  The  difference  in  the  manner  of  their  use 
does  not  render  one  public  more  than  the  other.  They  are  both  free  to  be  properly 
used  and  enjoyed  by  the  entire  public,  and  are  constructed  alike  for  their  use.  That 
the  legislature  may  afford  the  necessary  power  of  constructing  such  improvements  so 
essentially  necessary  to  the  comfort  and  convenience  of  tlie  community  is  apparent ; 
but  under  our  Constitution  we  think  the  mode  authorized  in  this  case  is  not  sanctioned, 
and  that  the  principles  announced  in  the  case  of  Lamed  v.  The  City  of  Chicago  fully 
govern  and  control  this  case.' 

"  Even  the  police  power,  comprehensive  as  it  is,  has  some  limitations.  It  cannot  be 
held  to  sanction  the  taking  of  prisate  property  for  jjnblic  use  without  making  just 
compensation  therefor,  however  essential  this  might  be,  for  the  time,  to  the  public 
health,  safety,  etc.  And  upon  like  principle,  a  purely  public  burden  cannot  be  laid 
upon  a  private  individual,  except  as  authorized  in  cases  to  exercise  the  right  of  eminent 
domain,  or  by  virtue  of  proper  proceedings  to  enforce  special  assessments'  or  special 
taxation.  The  drainage  of  malarial  swamps  would  surely  largely  contribute  to  pro- 
mote the  public  health ;  but  could  it  be  contended  that  therefore  the  burden  of  such 


CHAP,  v.]  CARTHAGE   V.    FREDERICK.  831 

In  Carthage  v.  JTrederick,  122  N.  Y.  268,  277  (1890),  in  sustaining  p^^»Uvv«Av^ 
the  constitutionalit}'  of  a  local  ordinance  of  the  same  sort  as  that  in  the  »  l-uTXUiT^ 
case  of  Goddard,  Petitioner,  the  Court  of  Appeals  (Second  Division),  >-^  j  j" 
Vaxn,  J.,  said  :  "  If  this  power  of  local  legislation  can  be  conferred  upon  ^'^  ^^^ 
the  largest  city  in  the  State,  it  can  also  be  conferred  upon  the  smallest  -tvtUV^^  ^' 
village  that  the  legislature  sees  fit  to  incorporate.  In  this  latitude  the  ■^^j.-Ailji  \a^ 
accumulation  of  snow  upon  sidewalks  in  large  quantities  is  a  matter  of  . 

course.  Its  presence  retards  travel,  interrupts  business,  and  interferes  A,-(XA>-'>''U.  I 
vyith  the  safety  and  convenience  of  all  classes.  Jt  is  a  frequent  cause  Vd^aJ^jJ.  h 
of  accidents  and  thus  affects  the  property  of  every  person  who  is  liable  I  .  j_ 
to  assessment  to  pay  the  damages  caused  by  a  failure  to  remove  it.  But  ^^**'^  ^^AAA/ 
how  is  it  possible  for  the  authorities  of  a  large  city,  with  many  hundred  tj^  ajMA^ 
miles  of  streets,  to  remove  the  snow  in  time  to  prevent  injury  to  those  i  "  .f  ^ 
\vho  have  the  right  to  travel  upon  the  sidewalks  unless  they  can  require    ,  . 

the  owners  and  occupants  of  adjacent  property  to  remove  it?  Every  yJ^^-^'-'*^'^  \ 
man  can  conveniently-  and  promptly  attend  to  that  which  is  in  front  of  njjU'J'Xi^ 
his  own  door,  and,  it  is  both  reasonable  and  necessary  that  he  should  .   '     ' 

be  compelled  to  do  so.     We  think  that" the  ordinance  under  considera-  ^^ 

tion  is  valid  ;  that  it  conflicts  with  no  provision  of  the  Constitution,  and  c^a^^jiJm^ 
that  it  is  the  duty  of  the  courts  to  enforce  it .  / 

"In  reaching  this  conclusion,  we  have  not  overlooked  the  case  of     t'*'^-*^| 
Gridley  v.  City  of  £loomington,  88  111.  554,  but  have  given  it  the    ^cc^^  '^'(^ 

drainage  may  be  laid  upon  some  single  person  to  be  arbitrarily  selected,  or  upon  those  4ri  f'^^v^-Mr 
who  happen  to  own  the  adjacent  dry  land,  in  disregard  of  the  principles  applicable  to 
special  assessments  and  special  taxation?     Undoubtedly,  the  allowing  of  ice  or  snow  -^  Vl/fiJ/'^ 
to  remain  upon  a  sidewalk  may  be  declared  a  nuisance,  but  it  must  be  a  public  nui-  i 

sauce,  and  one,  too,  not  caused  by  the  act  of  the  adjacent  property  holder,  but  solely    i/l/U'VC  i^ 
by  the  action  of  the  elements.     No  one  questions  the  riglit  of  the  municipality  to  pre-_^        //  ^.    j^ 
vent  such  use  of  property  and  such  action  of  the  citizen  as  may  be  injurious  to  the    ^\    ^ 
public  ;  but  the  adjacent  lot-owner  has  no  ownership  or  control  of  the  adjacent  street,    ijr,    f]AMMM 
and  this  ordinance  seeks  to  control  the  action  of  no  one  while  on  the  street.     The  lot-      ^  , 
owner  is  held  responsible  solely  and  simply  for  the  accident  of  owning  property  near  —/JptJ-    ^M^ 
the  nuisance.     He  may  have  no  more  actual  control  of  the  street,  or  necessity  to  use  it,     .  J  ,       t\ 
than  if  his  property  were  miles  away  ;  still,  he  is  held  responsible  for  a  result  he  could  not ,  ^^/^LW■  ^4  '^ 
control,  and  to  the  production  of  which  he  did  not  even  theoretically  contribute.     The     f     Af^i.  '^ 
cf'isl  of  the  whole  argument  is  merely  that  it  is  convenient  to  hold  him  responsible.     It  /i 

is  not  perceived  why  it  would  not  be  equally  convenient  to  hold  him  responsible  for  the  /  t6>4. 

entire  police  government  of  so  much  of  the  street. 

"  Counsel   seem   to  wish  to  draw  a  distinction  between  the  present  case  and  the     AK/JuiAXV^^ 
cases  of  CiVy  of  Chicarjo  v.  Lamed,  and    Citji  of  Ottawa  v.   Spencer,  supra,  upon  the 
ground  that  it  is  here  neither  sought  to  construct  nor  repair  a  sidewalk,  but  simply  to    xiJ<~  (vU_  tXv< 
keep  it  in  a  passable  condition.    But  the  difference  is  in  the  extent  and  not  in  the  char-      j  _^ 

acter  of  the  burden  sought  to  be  imposed.     The  principle  is  precisely  the  same  in  each     ^/^A^y^/^t*^ 
case.    The  object  is  to  fit  the  streets,  or  so  much  as  is  occupied  by  sidewalks,  for  travel ;     ' 
and  if  the  power  to  compel  the  private  person  to  accomplish  this  result  exists  at  all,  it  —H    ^ 
must  extend  to  the  necessary  means  in  each  case.     It  is  impossible  to  point  out  why  v      ^^'^•^   •'^ 
tlie  removal  of  a  snow-bank  should  rest  on  a  different  principle  from  that  applicable  to   .y*     -'^ 
filling  a  hole,  or  nailing  down  a  board.  /        / 

"We  are  satisfied  with  the  entire  correctness  of  the  ruling  in  Gridleif  v.  City  of      '%^u  r^' f- 
Bloommijton,  supra,  and  being  so  satisfied,  the  judgment  below  must  be  affirmed."  ^       / 

Jud(jrnent  affirmed.   r:iXu/-  X.   U 

DiCKET,  Sheldon,  and  Craig,  JJ.,  dissenting.  —  Ed. 


'^,.,c<yCUi/v      \jLf<-o^.\^  -vv_ctA-rC     CaT^^ 


ii«^^ 


832  RONKEN   V.    FUEHRING.  [CHAP.  V. 

attention  to  which  it  is  entitled  by  tlie  higli  standing  of  the  court  that 
decided  it.  TJie  argument  upon  which  the  opinion  in  tliat  case  rests  is 
that,  as  tlie  fee  of  tlie  street  was  in  tlie  corpornlicjiK  and  the  sidewnlk 
was  a  part  of  tlie  street,  tlie  lot-owner  had  no  mure  inU'ix'st  in  the  i^ide- 
walk  in  front  of  his  premises  than  any  otlier  citizen  of  the  niunicipality, 
because  it  was  set  ai)artfor  the  exclusive  use  of  ])ersons  travelling  on 
foot  and  was  as  much  under  thecontrol  of  the  nuinicir)al  government  as 
the  street  itself. 

"  AVe  are  unable  to  yield  to  this  reasoning,  because  jt  overlooks  not 
only  the  public  safety  and  general  convenience,  but  also  the  peculiar 
interest  that  every  owner  or  occujjant  of  real  pro|)erty  has  in  a  clean 
sidewalk  in  front  of  his  own  premises.  Whatever  adds  to  the  Usefulness 
of  a  sidewalk  adds  both  to  the  rental  and  permanent  value  of  the  adja- 
cent  lot. 

"  After  carefully  examining  all  of  the  questions  presented  by  counsel, 
we  think  the  judgment  should  be  affirmed." 

All  coucur  except  Follett,  Ch.  J.,  not  sitting. 
>  Judgment  affirmed. 


tWU      ^  C    '^^jC^'^'^';^^^ 


0  CUac^ 


EEINKEN  V.  FUEHRING. 


vdti 


^l 


'irUylu^f  t^    /2^ttUU  SUPREME    COTJRT    OF    INDIANA.       1891. 

^id.     XL^'^^/^'f^      I  [130 /«r/.  382.] 

,  /  A         Appeal  from  Circuii  Court,  Marion  County  ;  E.  A.  Brown,  Judge. 

/Uia  OMiAj     Action  by  Fred.  Fuehring  and  othpi-s  ngainst  Henrv  Fteinken.  Sr.,  to 
louXt  i'i    foreclose  a  lien  on  defendant's  real  estate.     Defendant  appeals  from  a 
/    ^-fo:/^  judgment  overruling  his  demurrer  to  the  complaint.     Affirmed. 
'^  '     De7i7iy  &  Elliott,  for  appellant. 

f2jJlM^^  Augustus  L.  Mason,  for  appellees. 

^i        Coffey,  J.     The  appellees  brought  this  suit  in  the  Marion  County 

1        Circuit  Court  to  foreclose  a  lien  for  the  amount  assessed  against  the 

p^*  appellant's  real  estate  for  sweeping  the  street  in  front  of  his  property 

ici^      in  the  city  of  Indianapolis,  under  a  contract  made  between  the  city  and 

y      the  appellees  pursuant  to  the  provisions  of  the  city  charter.    A  demurrer 

rilji  (UmM,     to  the  complaint  was  overruled,  and  the  appellees  hnd  judgment,  from 

^^j^/yyuL  which  this  appeal  is  prosecuted.    The  charter  of  the  city  of  Indianapolis 

,i;JtMA'r  'tU    is  found  in  Acts  Gen.  Assem.  1891,  p.  137.     It  provides  for  the  mode 

,(rt^       of  improving  the  streets,  and  the  payment  for  such  improvements  ;  and 

r^;^^^'^T7       confers  on  the  city,  through  its  proper  officers,  the  power  to  make  con- 

od.  sM-^,     tracts  for  sprinkling  and  sweeping 's'uch  streets  in  the  city  as  it  may 

.  /a/«AW^f  deem  proper,  and  to  assess  against  the  property  holders  abiitting  on 

■pj^As        such  streets  the  cost  of  such  sprinkling  and  sweeping.     The  only  ques- 

'^'^■^y^       tion  before  us  for  decision  relates  to  the  constitutionality  of  so  much  of 

t'^'f  i    the  Act  as  authorizes  the  city  to  contract  for  sprinkling  and  sweeping 
n/^*^  the  streets  at  the  cost  of  the  property  holders  along  the  line  of  such         j  ^ 

-J  ^^x  kJh^d,  fUMu  xWx ^^  zA.foO^'i  *  #-3/  r^> 


CHAP,  v.]  EEINKEN    V.    FUEHEING.  '  833    ,oJoJLAx}*X 

(IcmI  by  the  ai)pellant  that  those  provisions  are  yrZcLr^-'^'^ 
i  reasons:  1^1  rst.  That  it  violates  the  provision       -7»— O 


streets,  it  being  contende 
unconstitutional  for  tlie 


oFour  State  Constitution  requiring  an  equal  and  unifoi  in  vnt,(>  of  tn\-ntion. 
Second.  Because,  even  if  the  city  has  power  to  compel  abutting  property  ''^^■<-J^^'^^^ 
owners  to  pa}-  for  sweeping  the  streets  in  front  of  their  property,  itha,p  "TV^^  Tryf^^ 
-  no  power  to  com|)el  them  to  do  so,  and  at  the  same  time  compel  them  J^td  •  /^ 
to  pay  into  the  general  fund  apart^of  the  costs  of  cleaning  other  streets,    ^'  /w 

as  provided  for  in  the  Act.     Third.  Because  the  proceeding  which  the  //     a 

Act  attemi:)ts  to  authorize  amounts  to  a  takino;  of  private  property  with-  Oy^y^U^^^^/i/^ 
o^it  due  compensation  and  due  ijrocess  of  law.  J.  u.ajjMi 

To  support  his  contention  as  to  the  first  proposition  presented,  the  .    (/     ^ 

appellantn-elies  to  some  extent  upon  the  case  of  Gridley  v.  City  of  Bloom-  Ta  h*^  ^ 
inqton,  88  111.  554,  and  the  case  of  City  of  Chicago  v.  O'Bvwu  111  111.  oJ;^^uk^  * 
532.  These  cases  hold  that  an  ordinance  making  it  the  duty  of  the  (■'  ^  ru, 
owner  or  person  occupying  premises  abutting  upon  a  street  to  keep  the   '  ^ 

sidewalks  free  from  snow  and  ice,  and  jjroviding  for  the  enforcement  of-  ^wv^^.  "^^^ 
such  ordinance  b}'  the  infliction  of  penalties,  is  void.  The  cases  seem  ^^  ^f  fji 
to  rest  principally  upon  tlie  peculiarity  of  the  laws  of  the  State  of  Illinois.  ^  i  r 
under  which  the  lot-owner  does  not  own  the  fee  in  tlie  street.  Tlie  last  ^^  ^  b-^)^^ 
case,  however,  was  decided  by  a  divided  court,  three  of  the  judges  refus-  a^cwUm^ 
ing  to  concur  in  the  conclusion  readied.  The  authorities  make  a  clear  z^,  / 
distinction  between  the  word  "taxation"  and  the  word  ''assessment."  ,    , 

"•  'Taxes'  are  impositions  for  purposes  of  general  revenue.     'Assess-   i^U-i^ru^'^^ 
mcnts'  are  special  and  local  impositions  ujjon  property  in  the  immediate  -j-^i^  *^ 
vicinity  of  an  improvement  for  the  puVilic  welfare,  which  are  necessary     a        it 
to  pay  for  the  improvement,  and  laid  with  reference  to  the  special  benefit    H/'^l'^^ 
^hich  such  property  derives  from  the  expenditure."    Palmer  v.  Stmnph,    'xMM/kw/^ 
29  Ind.  329.     This  distinction  is  recognized  in  nearly  all  the  States  of  i 

the  Union.     For  a  collection  of  the  authorities  upon  this  subject  see   0>^^-^-t^^^  ' 
the  case  above  cited.     The  assessment,  therefore,  made  against  the      iy^yi^jijA^  > 
owners  of  property  along  the  streets  required  to  be  swept  under  the  Act     '/^ 
in  question,  to  pay  the  expense  of  such  sweeping,  is  not  a  tax,  but  a  •^'^^-^^^ 
local  assessment.  (J/Qy  /Ooc  .(/•^ 

Tlie  question  is  then  presented  as  to  whether  a  local  asseijsment  for  .^j^u/^P^ ' 
this  purpose  can  be  sustained  under  our  Constitution.     If  it  can  be  sus-    f    /  L^£xx 
tained  at  all,  it  must  be  upon  the  grounds  that  it  is  the  proper  exercise    ^      "^z . -  a^  i 
of  the  police  power  of  the  State,  and  a  special  benefit  to  the  abutting    ('^^U^^ 
property  owner.     The  power  of  a  munici|)al  corporation  to  order  side-  -U      l^^M 
walks  of  a  particular  kind,  and  to  assess  against  the  abutting  property        ,       ^l 
owner  an  amount  necessaiy  to  pay  for  the  same,  and  to  pay  for  keeping  ^'r^V  ^ 
the  same  in  repair  and  |:)roper  condition  for  the  use  of  the  pnhlie,  is  /nAA'^l^^^ 
generally  upheld  upon  tiie  ground  that  it  is  lu'oper  exercise  of  the  police  /        '        ^ 
power  of  the   State.     Goddard,  Petitioner,  16  Pick.  504;   Palmer  v.   ^^^^ 
IFa^j,  6  Colo.  106;  Cooley,  Tax'n,  pp.  396,  397;   State  v.  Mayor,  37    C^T^M^ 
N.  J.  Law,  423  ;  Kirby  \.' Boyhton,  14  Gray,  252  ;   Fedrick  v.  Bailey,  -^^    ^Mji  I 
12  Gray,  163;  Moore  v.  Gadsden,  93  N.  Y.  12;  Hartford  y.  Talcott,         ^  , 

48  Conn.  525.     Judge  Coole}'  says  :  "  The  cases  for  assessments  for  the  'M    l'^-^^  ^ 
VOL.  I.  —53  ^^1  c 


y  fy  834  REINKEN   V.   FUEHRING.  [CHAP.  V. 


i^^vK^^c    construction  of  Avalks  b}-  the  side  of  streets  in  cities  and  other  populous 
^      /     m.  places  are  more  distincth'  referable  to  the  police  power.     These  foot- 
walks  are  not  onl}-  required,  as  a  rule,  to  be  put  and  kept  in  proi)er 
H  ttu-^        condition  i'or  use  b}-  the  adjacent  proprietors,  but  it  is  quite  custoniaiy 
/  y     to  confer  b}-  the  municipal  charters  full  authority  upon  the  municipalities 
^  '  '    to  order  walks  of  a  kind  and  quality  by  them  prescribed  to  be  constructed 

K^iU  H<  by  the  owners  of  adjacent  lots,  at  their  own  expense,  within  a  time  lim- 
ited b}'  the  order  for  the  purpose  ;  and  that,  in  case  of  their  failure  so 
^  /to  construct  them,  it  shall  be  done  by  the  public  authorities,  and  the 
C-»X/^**-  cost  collected  from  such  owners,  or  made  a  lien  lipon  their  property. 
When  this  is  done,  the  duty  must  be  looked  upon  as  a  regulation  of 
ij  (/U(.  police,  made  because  of  the  peculiar  interest  such  ow^iers  have  in  the 
X^^IA,  walks,  and  because  their  situation  gives  them  peculiar  fitness  and  ability 

y^/  for  the  performino;  with  promptness  and  convenience  the  duty  of  putting 

^      . '       them  in  a  proijer  state,  and  afterwards  keeping  them  in  a  condition 
-/6W*^^^'^  suitable  for  use."    Coolej-,  Tax'n,  supra. 

^  Assuming,  as  held  by  these  authorities,  that  the  power  to  make  local 

assessments  to  pay  for  local  improvements  or  benefits  is  to  be  referred 

to  the  police  power  of  the  State,  we  are  naturally  led  to  inquire  whetlier 

ucrfUu/^    the  assessments  provided  for  in  the  charter  now  under  consideration 

^      ,       amounts  to  a  taking  of  private  property  without  compensation,  and 

c-2.  VUM       without  due  process  of  law,  as  contended  by  the  appellant.    Mr.  Sedgwick, 

<^         in  his  valuable  work  on  Statutory  and  Constitutional  Law,  435,  says  : 

^ni-uAMy         t,  rpj^g  clause  prohibiting  the  taking  of  private  property  without  compen- 

fZiJ^M/^     sation  is  not  intended  as  a  limitation  of  the  exercise  of  those  police 

powers  which  are  necessaiy  to  the  tranquillity  of  every  well-ordered 

community,  nor  of  that  general  power  over  private  property  which  is 

necessary  for  the  orderly  existence  of  all  governments.     It  has  always 

m  cU  ■  been  held  that  the  legislature  .may- , make  jpolice^  regulations,  altliough 

they  may  interfere  with  the  fu  1 1^  e n j oy m en t_  of  private  property,   an d 

though  no  compensation  is  given."  .   .   .  [Here  follows  a  citation  from 

1  Dillon,  Munic.  Corp.  212,  and  a  statement  of  the  cases  of  Goddm-d, 

Petitioner,  and  Carthage  v.  Frederick.'] 

The  principles  which  rule  the  cases  above  cited  cannot,  in  our  opin- 
ion, be  distinguished  from  the  principles  which  rule  the  case  at  bar. 
Of  course,  it  is  not  claimed  that  in  the  exercise  of  the  police  power  such 
assessments  could  be  made  and  collected  from  tlie  nbntt.ing  pr(^pevf.y 
owner  unless  he  had  a  special  interest  and  derived  a  special  benefit 
therefrom,  not  enjoyed  by  the  public  in  general ;  but  if  he  has  a  special 
interest  in  the  improvement  of  the  street  and  sidewalk,  and  in  keeping 
them  free  from  snow  and  ice,  so  he  lias  a  special  interest  in  keei)ing  them 
free  from  accumulating  filth.  It  is  matter  of  common  observation,  of 
which  we  must  take  notice,  that  property  located  upon  well-improved 
streets,  kept  clean,  is  more  desirable  than  property  on  unimi)roved 
streets  where  mud  and  filth  are  i)ermitted  to  accumulate  and  obstruct 
their  use.  It  is  safe  to  assert,  we  think,  that  keeping  a  street  clean 
adds  to  the  rental,  if  not  to  the  permanent  value,  of  property  located 


Cqld 


CHAP,  v.]  REINKEN  V.    FUEHRING.  835 

thereon  ;  and  for  this  reason,  among  others,  the  abutting  proi)cvty  owner 
has  a  special  interest  in  sncli  cleaning,  not  enjoyed  by  the  general  com- 
munity. For  the  reason  that  the  public  in  general  has  an  interest  in 
keeping  the  streets  free  from  filtli,  the  city  may,  in  exercising  the  police 
power  conferred  upon  it  by  the  State,  order  them  swept ;  and  for  the 
further  reason  that  the  abutting  property  owner  derives  a  benefit  from 
such  sweejjing  not  enjoyed  by  the  general  public,  he  may  be  required 
b}'  assessments  to  pay  the  expenses  incident  to  such  swcei)ing.  It  fol- 
lows from  wdiat  we  have  said  that  tlie  assessments  provided  I'or  by.t.lic 
Act  under  consideration  do  not  amount  to  a  taking  of  private  proijerty 
without  compensation  and  without  due  process  of  law. 

Assessments  of  the  kind  we  are  now  considering  are  made  upon  the 
principle  that  the  person  assessed  is  benefited  in  the  increased  vahie  of 
his  property,  either  rental  or  permanent,  over  and  above  the   bcnetits 


re(-civcd  by  the  public,  in  a  sum  equal  to  the  amount  he  is  required  to 
nay.  It  is  upon  this  theory  alone  that  they  can  be  sustainecT  If  the 
property  owner  is  fully  compensated  for  his  outlay  in  the  enhanced  value 
of  his  property,  we  see  no  reason  why  he  may  not  be  taxed  generall}-, 
also,  with  the  balance  of  the  public,  for  cleaning  other  streets  in  which 
the  public  alone  have  an  interest,  and  which  are  not,  and,  indeed,  cannot 
be,  swept  as  the  streets  upon  which  his  property  abuts.  We  are  not 
able  to  perceive  how  such  a  tax  would  be  unjust  or  inequitable,  inas- 
much as  he  receives  as  much  benefit  therefrom,  in  contemplation  of  law, 
as  any  other  member  of  the  community.  As_he  has  been  fuU^'  compen- 
sated for  his  outlay  in  sweeping  the  street  upon  which  his  prnppity  is 
situated,  he  should  not  be  heard  to  complain  of  such  payment  when 
called  upon  to  bear  bis  portion  of  other  public  burdens.  Nor  do  \ie 
think  the  fact  that  the  statute  contemplates  the  sweeping  of  the  cross- 
ings renders  it  invalid.  It  cannot  be  said  that  the  property  owners  do 
not  receive  a  special  benefit  from  kee|)ing  them  clean .  Sweeping  the 
street  in  front  of  the  property  would  be  of  little  benefit  if  filth  and  r u b - 
bish  were  permitted  to  accumulate  upon  the  crossings,  so  as  to  rend e r 
them  unfit  for  use.  If  the  property  does  in  fact  receive  a  special  benefit 
fi;om  sweeping  the  crossings,  there  is  no  reasoli  why  those  who  are  thus 
benefited  should  not  pay  the  expenses.  Having  carefully  examined  all 
the  objections  urged  against  the  validit}^  of  so  much  of  the  statute  as  is 
here  called  in  question,  we  have  reached  the  conclusion  that  it  is  not 
unconstitutional,  and  that  the  court  did  not,  therefore,  err  in  overruling 
a  demurrer  to  the  complaint  before  us.  Judgment  affinned. 

Elliott,  C.  J.,  took  no  part  in  the  decision  of  this  cause. 


836 


COMMONWEALTH   V.    CARTER. 


[chap.  V. 


/  Jo.  COMMONWEALTH  v.  CARTER. 

vuMx  ^ 


{ciM. 


1882. 


Supreme  Judicial  Court  of  Massachusetts. 

[132  JMass.  12.] 

Indictment  for  an_jissault,   on  September  28,   1880,   ujiotL^Iartin 


^  /t">-i**e Griffin,  an  inspector  of  milk,  while  said  Griffin  was  in  the  discharge  of 


AcUi         '''L^. 


tt^ 


,J^.Al<JUMH^    six^cimens  thereof  and  cause  the  saine  to  be  annlyzed,  or  othcrvvisi 
\        /  iln^^  satisfactorily  tested,  the  result  of  which  they  shall  record  and  preserv* 


his  duty  asjuch  inspector.  .  . 

The  jur3'  returned  a  verdict  of  guilty  ;  and  the  defendant  alleged 
exceptions. 

J.  D.  Thomson,  for  the  defendant. 

V.  H.   Jiarroics,  Assistant  Attorney-General   (G.  3Iars(on,  Attor- 
ney-General, with  him),  for   Ihe  Commonwealth. 

Field,  J.     The  only  (inestion  aroued  in  this  case  is  the  constitution- 

■f-    /  Lj    ality  of  the  St.  of  18G4,  c.  122,  §  2,  so  far  as  it  authorizes  inspectors 

,  ^        ufjnillv  to  '•'•  enter  any  place  where  milk  is  stored  or  kei)t  for  sale,  and 

^*-*^-*'''^-'''^^    all  carriages  used  in  the  conveyance  of  milk  ;  andC(whcnever  they  have 

'UaaaM  reason  tojjelieve  any  nnlk  found  therein  is  ndulterated,}they  shall  take 

se 

e 

,  as  evidence." 

^  yUA,  rv-  j^  jg  contended  that  this  provision  is  unconstitutional,    because  it 

.ivWP^^M    authorizes  the  taking  of  property  without  consent  or  compensation ; 
JlifAH***-^    warrants  unreasonable  searches  and  seizures;  compels  one  to  furnish 
I  evidence  against  himself;  and  is  not  within   the  police  power  of  the 

■•*      I  Commonwealth.     An  analysis  of  a  specimen  of  milk  offered  for  sale  is 

(^  an  appropriate  means  of  carryino;  into  ctfect  the  various  provisions  of 

/ja£-Wt/aA/m  the  statutes  regulating  the  sale  of  milk  in  this  Commonwealth.  In  the 
r^.  ,  case  at  bar,  the  can  of  milk  was  taken  from  a  carriage  used  in  the  con- 
£c  XA.a.iU  vevance  of  milk,  and  it  is  unnecessary  to  consider  whether  the  words 
'^^JMi  of   the  section  'M^lacc  whore  milk   is   stored    or    kept   for  sale"   may 

,^^(jyiM/i.tLi,  or  may  not  include  a  dwelling-house,  and  whether,  if  construed  to 
include  a  dwelling-house,  they  do  not  i^urport  to  give  a  power 
wliicli  tlie  legislature  could  not  give,  because  the  clause  authorizing  an 
entry  into  any  place  where  milk  is  stored  or  kept  for  sale  is  separable 
from  that  which  authorizes  an  entry  into  all  carringes  used  in  the  con- 
veyance of  milk.  Neither  is  the  power  granted  in  violation  of  the  pro- 
vision of  art.  12  of  the  Declaration  of  Rights,  that  no  subject  shall  be 
LyJljUt  compelled  to  accuse,  or  furnish  evidence  against  himself     If  the  seizure 

i s  such  as  is  authorized  by  the  Constitution  and  a  law  passed  in  ])urs u- 
ance  thereof  the  fact  that  the  thing  seized  may  be  used  in  evidence  in 
a  criminal  charge  against  the  person  from  whose  possession  it  is  take n , 
dpes  not  render  the  seizure  itself  a  violation  of  the  Declaration  of 
Rights.  CommomoeaUh  v.  Dana,  2  Met.  329,  337.  If  the  statute 
had  required  that  all  milk  offered  for  sale  should  first  be  inspected,  it 
would  hardly  be  contended  that  the   trifling   injury  to  property  occa- 


Ye4 


da 


V 

■r    A' 

m 


oXcA  bcha^  yl^Mu  cvu^M^  iOu^^    fu^AT^^  '>.^-    ^^^^,   ^Itt^^ 

CHAP,  v.]  PEOPLE   V.   EWER.  837  ^ 

sioued  by  taking  samples  for  inspection  would  be  such  a  taking  of  fp^^^/hc^  i^ 
private  property  for  public  use  as  to  require  that  compensation  be  /-r/L  {l^ 
made  therefor.     Such  an  injury  to  property  is  a  necessary  incident  to  " 

the  enforcement  of  reasonable  regulations  affecting  trade  in  food,  v* 
Private  property  is  held  subject  to  the  exercise  of  such  |)ublic  rights,  ^  ^f"  ^^  y- 
for  the  common  benefit ;  and  in  the  case  of  licensed  dealers  in  merchan-  -'"-'^■^^i 
dise.  the  injury  suffered  by  inspection  is  accompanied  by  advantages  /\/^uAji^'tM^ 
which  must  be  regarded  as  a  sufficient  compensation.  Bancroft  v.  ,  v  a^^^^^^ 
Camhrhlge^  12G  Mass.  438,  441.  Instead  of  requiring  all  milk  offered  \Au^ 
for  sale  to  be  first  inspected,  the  legislature  for  obvious  reasons  has  J .     r 

permitted  licensed  dealers  to  sell  milk  without  inspection,  has  imposed    /^'■'t^-^^ 
penalties  for  selling  adulterated  milk,  has  defined  what  shall  be  deemed    ^'^^  §^^^ . 
adulterated  milk,  and  has  provided  that  when  the  inspector  of  milk  has    ^   c.auu^  «^ 
reason  to  believe  that  any  milk  has  been- adulterated  he  may  takespeci-         ,    , 
'     mens  thereof  in  order  that  by  analysis  or  otherwise  he  may  determine    >vuX^  ' 
whether  the  milk  has  been  adulterated.     Such  a  seizure  of  milk  for  the   j^/i-Ux^^ 
purposes  of  examination  is'a  reasonable  method  of  ins|)ection'5>and  does  '  ^     / 

■T — '■ — T — f;  ^' ~ r^-^ — 1 ,  t       ,  V- '  t^^^^^^  ^ 

not  require  a  warrant.     It  is  a  supervision  under  the  laws  by  a  public  / 

officer  of  a  trade  which  concerns  the  public  health,  and  is  within  the  >6~€<^^  ^ 
police  power  of  the  Commonwealth.  Commomvealth  v.  Ducei/^  126  A-:yi,^^A\i\j 
Mass.  269.     Jones  v.  Root,   6  Gray,  435.  (/        '^^ 

I  There  is  nothing  in  this  case  which  requires  us  to  determine  the 
rights  of  the  defendant,  if  the  inspector  had  attempted  to  take  a  larger 
quantity  of  milk  for  analysis  than  was  reasonably  necessary  for  the 
performance  of  his  duties. >  We  have  not  found  it  necessary  to  con- 

'  sider  whether  the  defendant,  by  voluntarily^  accepting  a  license  to  sell 
milk,  has  not  assented  to  the  conditions  and  regulations  which  the 
legislature  has  seen  fit  to  impose  upon  the  exercise  of  the  trade 
licensed.  See  Pitkin  v.  Springfield,  112  Mass.  509;  Bertholf  v. 
O'Eeilly,  74  N.  Y.  509,  517.  Exceptions  overruled. 


PEOPLE   V.    EWER. 


-{fir-    iL^i/uAriAXit-i    W4 


New  York  Court  of  Appeals.     1894.\  '     u  ^y        ., 

[3G  Northeastern  Reporter,  4.]  \^    jk        '  i>       (tixJt.   tX^''^ 

Appeal  from  Supreme  Court,  General  Term,  first  department.  .  .  •  yi,,,,<^  JZAii* 
Charlotte  Ewer  was    arrested  upon   a  police  magistrate's  warrant,        . 
charged  with  a  misdemeanor  in  violating  section  292  of  the  Penal  Code  '^^^'^^  ^^'^^'^ 
by  exhibiting  her  child,  Mildred  Ewer,  as  a  dancer  at  the  Broadway  -X^JZiM  "^ 
Theatre  in  New  York  City.     The  examination  before  the  magistrate     >,r;A    /j^ 
sustained  the  charge,  and  showed  that  she  was  of  the  age  of  seven  /. 

years,  and  went  by  the  stage  name  of  ^' La  Regaloncita ;  "  that  she^<-^^  .^ 
was  clad  in  the  usual  style  of  the  ballet-dancer,  in  a  low-necked,  sleeve-   /^ Ji^^^-<MX^  j 
less,  and  short  dress,  and  wore  purple  tights  ;  that  she  danced  upon  the  ^       ^ 


L  /k.^>C-        838  PEOPLE  V.   EWER.  [CHAP.  V. 

^  stage  to  the  music  of  an  orchestra,  elevatiiifif  her  k'g:s.  inoving  uuon  her 

•^    W  toes,  and  posturing  with  her  figure.     Her  mother,  being  held  upon  the 

>  A-^n t  charge,  sued  out  writs  of  Juibeas  corpus  and  certiorari,  to  \vhiclijthe  mag- 

J.  istrate  made  return  of  his  proceedings,  etc.     The  prisoner  demurred  to 

■^   ,  **"  the  return  ;  alleging  that  there  were  no  sufficient  grounds  for  holding  her, 

■pi/J^nu  and  lliat  t.lie  statute  under  which  she  was  arresled  was  unconstitutional. 

I      "  The  provisions  of  the  Code  under  which  this  arrest  was  made  read  that  "  a 

(I  u.*^'{  pei'son  who  .  .   .  exhibits  ...  a  female  child  apparenth'  or  actually 

jaA)*^  under  the  age  of  fourteen  years,  ...  or  who,  having  the  care,  etc.,  of 

4o<t'\T  K^  ^"^'^  ^  child  as  parent,  etc.,  ...  in  anj'  way  consents  to  the  employ- 

/  ment  or  exhibition  of  such  a  child  either  as  ...  a  dancer  ...  or  in 

,Vta  <,Ax~  a  theatrical  exhibition  ...  or  in  any  .   .   .   exhibition    dangerous  or 

;-'            J  injurious  to  the  life,  limb,  health  or  morals  of  the  child  ...  is  guilty 

fv    n  of  a  misdemeanor."     At  the  Special  Term  the  writs  were  dismissed,  and 

^^^  ''!'  the  prisoner  was  remanded.     The  order  of  that  court  was  affirmed  at 

,Cjt  J^^Js'^  "■  tliG  General  Term,  and  the  defendant  has  appealed  to  this  court. 

■f-  ^  A.  J.  Dlttenhoefer  and  David  Gerber,  for  appellant.     De  Lancey 

i^  Nicoll,  Dist.  Atty.  {EWridge  T.  Gerry ^  of  counsel),  for  the  people. 

l-tiMA-  Gray,   J.     The   question  we  shall   determine    upon   this   appeal    is 

t^^  whether  the  statute  under  which  the  appellant  was  arrested  violates 

/.  any  just  and  personal  rights  secured  to  her  by  the  Constitution  of  the 

jUx.  t>f  i^  State.     If  it  is  such  an  interference  with  the  legal  relation  of  parent 

tiv^o.  OAj^  and  child  as  exceeds  the  limits  within  which  the  legislature,  exercising 

t  t  the  sovereign  power  of  the  State,  may  regulate  and  control  that  rcla- 

Uk^Jj-^  tion,  then  it  is  the  duty  of  the  courts  to  declare  its  unconstitutionality ; 
|i.     .^,fct-but,  if  it  is  within  a  proper  and  legitimate  exercise  of  legislative  func- 

.  tions,  the  courts  may  not  interfere.     This  question  falls  within  those 

[a  o-L  t*^  which  are  classified  under  the  head  of  the  police  power  of  the  State. 

'jj.   o-^v  The  extent  of  the  exercise  of  that  power,  with  which  the  legislature  is 

^  invested,  and  which  it  has  so  freely  exerted  in  many  directions,  within 

^'•'^^'^  .  constitutional  limits,  is  a  matter  resting  in  discretion,  to  be  guided  by 

ttu,^>tUa  the  wisdom  of  the  people's  representatives.     It  is  difficult,  if  not  im- 

tti  JtJ^  possible,  to  define  the  police  power  of  a  State,  or.  under  recent  judi- 
cial  decisions,  to  say  where  the  constitutional  boundaries  limiting  its 

^V;  exercise  are  to  be  fixed.     It  is  a  power  essential  to  be  conceded  to  the 

t    .  State,  in  the  interest,  and  for  the   welfare,  of  its  citizens.     We  'may 

■  "^  ^  say  of  it  that  when  its  o|)cration  is  in  the  direction  of  so  regulating  a 

lXo^  .  use  of  private  property,  or  of  so  restraining  personal  action,  as  mani- 
festly to  secure  or  to  tend  to  tlie  comfort,  prosperity  or  ))rotection  of 
the  community,  no  constitutional  guarantee  is  violated,  and  the  legisla- 

^>^  ^'^~  live  authority  is  not  transcended.     But  the  legislation  must  have  some 

•/-'        '^  relation  to  these  ends;  for,  to  quote  the  exi)ressions  of  Mr.  Justice 

"*'          ■^  -  Field  in  the  Slaughter- House   Cases,  16  Wall.  36,    "  under  the  mere 

U  aW-^*^^  guise  of  police  regulations,  personal  rights  and  private  property  cannot 
LC'<-  \>wvi2'  be  arbitrarily  invaded."     In  People  v.  King,  110  N.  Y.  418,  18  N.  E. 

.  J^  24.'),  it  was  well  observed  by  Judge  Andrews:     "By  means  of  this 

'  '^'^  i^  power  the  legislature  exercises  a  supervision  over  matters  affecting  the 

i^  ^  tU  JU^V  4-tt^  f-vc.  ?      d^^'V    ^— ^  ^.tr.^ 


kc^^UM/i 


«IAP.  v.]  PEOPLE   V.   EWER.  839    -  ^>A^irvoC<< 

common  weal.  ...  It  may  be  exerted  whenever  necessary  to  secure    e^rvc^^^.  «^u 
the  peace,  good  order,  health,  morals,  and  general  welfare  of  the  com-       <    ,,  ,^ 
munity,  and  the  propriety-  of  its  exercise,  within  constitutional  limits,       \) 
is  purely  a  matter  of  legislative  discretion,   with  which  courts  cannot     -^  ra-<^e .. 
interfere."     The  assumption  of  the  exercise  of  this  extraordinary  and    Xo^x^JJ^*^' 
very  necessary  power  has  been  the  subject  of  severe  criticism  in  the     -  ^  ^^ 
opinions  of  judges,  when  it  has  been  sought  thereby  to  regulate  and  *J   . 

control  in  the  interest  of  the  public  the  conduct  of  corporate  or  indi-   '5tA-£-^-'»-<. ' 
vidual  business  transactions.     3funn  v.  State  of  Illinois,  94  U.  S.  113,     0^^^'^' 
may  be  referred  to  as  starting  a  current  of  authority  in  this  country,    j^  .^-/tf^*.  ^ 
But  no  such  criticism  can  find  just  grounds  for  cavilling  at  legislation  ^  (J 

whose  ends  clearly  tend  to  i)romote  the  health  or  moral  wcll-beintr  of   'QXyvta.^X^  < 
the   members   of  society.     To   that   class   of  legislation    tliis    statute  /     . 

belongs.     By  preventing  the  exhibition  of  children  of  tender  and  im-         ^ 
mature  age  unon  the  theatrical  or  other  public  stage,  the  legislature  is    tCL^t^  -^ 
exercising  that  right  of  supervision  and  control  over  the  child  which  in 
every  civilized  State  inheres  in  the  government,  and  which  nothing  in 
the  legal  relations  of  parent  and  child   should  be  deemed  to  forbid.      ^ 
The  proposition  is  indisputable  that  the  custody  of  the  child  by  the  -i'l^-tn^A. 
parent  is  within  leoislative  regulation.     The  parent,  by  natural  law,  ,s5<-'<Hr^^'^^ 
is  entitled  to  the  custod}'  and  care  of  the  child,  and,  as  its  natural  ^^t^<^^t^' 
guardian,  is  held  to  the  performance  of  certain  duties.     To  society,  / 

organized  as  a  State,  it  is  a  matter  of  paramount  interest  that  the  ^        (f .  . 
child  shall  be  cared  for,  and  that  the  duties  of  support  and  education    'pA^VV-*-^'^ 
be  performed  by  the  parent  or  guardian,  in  order  that  the  child  shall    X^.^^  J^i, 
become  a  healthful  and  useful  member  of  the  community.     It  has  been  ^^ 

well  remarked  that,  the  better  organized  and  trained  the  race,  the  better    ^  o-\axx. 
it  is  prepared  for  holding  its  own.     Hence  it  is  that  laws  are  enacted  ^t^v^  "^ 
looking  to  the  compulsory  education  by  ])arents  of  tlieir  children,  and       /•  /^ 

to  their  punishment  for  cruel  treatment,  and  which  limit  and  regulate 
the  em])loyment  of  children  in  the  factory  and  the  workshop,  to  prevent 
injury  from  excessive  labor.  It  is  not,  and  cannot  be,  disputed  that  the 
interest  which  the  State  has  in  the  ijhysical,  moral,  and  intellectual  well- 
being  of  its  members  warrants  the  implication  and  the  exercise  of  every 
just  power  which  will  result  in  preparing  the  child,  in  future  life,  to  su])- 
p^rt  itself,  to  serve  the  State,  and,  in  all  the  relations  aad  duties  of 
adult  life,  to  perform  well  and  ca|)ably  its  part.  .  .  . 

The  learned  counsel  for  the  appellant  does  not,  in  the  main,  contest 
the  rigiit  and  the  duty  of  the  State  to  protect,  and  to  promote  b}'  ade- 
quate legislation,  the  health  and  morals  of  its  citizens,  but(bases  his 
arguments  here  upon  the  proposition,  substantially,  that  the  legislature 
cannot  take  from  parents  the  right  to  employ  their  children  in  any  law- 
ful occupation,  not  indecent  or  immoral,  or  dangerous  to  life,  limb, 
health,  or  morals.  ^That  proposition  may  be  readily  conceded.  It  is 
true  enough  that  if  the  court  could  say  that  this  legislation  was  an 
arbitrary  exercise  of  the  legislative  power,  depriving  the  parent  of  a 
right  to  a  legitimate  use  of  his  child's  services,  —  that,  while  ostensibly 


840  PEOPLE   V.   EWER.  [CHAP.  V. 

for  the  promotion  of  the  well-being  of  cliiUlrcn,  in  reality  it  strikes  at 
an  inalienable  ri,!4ht  or  at  the  personal  liberty  of  the  citizen,  and  but 
remotely  concerned  the  interests  of  the  community,  —  it  would  be  its 
duty  to  so  pronounce,  and  to  declare  its  invalidity.  liut  this  legislation 
has  no  such  destructive  effect  or  tendency.  It  does  not  deprive  the 
parent  of  the  child's  custody,  nor  does  it  abridge  any  Just  rights.  ("It 
i nterferes  to  |)revent  the  public  exhibition  of  children,  under  a  certa i n 
age,  in  spectacles  or  i)crformances  which,  by  reason  of  the  place  or 
hour,  of  the  nature  of  the  acts  deu^anded  of  the  child  performer,  and 
of  the  surroundings  and  circumstances  of  the  exhibition,  are  deemed  by 
the  legislature  prejudicial  to  the  physical,  mental,  or  moral  well-being 
of  the  child,  and  hence  to  the  interests  of  the  State  itself.  ^Take  the 
facts  of  this  case,  and  the}'  seem  sufliciently  to  warrant  the  interference 
of  the  law.  It  is  not  necessar}'  to  reason  upon  them.  The  scanty 
dress  of  the  ballet-dancer,  the  pirouetting  and  the  various  other  de- 
scribed inoyements  with  the  limbs,  and  tlu;  vocnj  eirorts  caniiot  bc  Slkkl 
to  be  without  possible  prejudice  to  the  i)hysical  condition  of  the  child , 
while  in  the  glare  of  the  footlights,  the  tinsel  surroundings,  and  the 
i ncense  of  poinilar  apijlause,  it  is  not  imi)ossible  that  the  imma t m-e 
mind  should  contract  such  unreal  views  of  existence  as  to  uutit  it  lor 
the  stern  realities  and  exactions  of  later  life!  The  statute  is  not  to  be 
construed  as  applying  only  when  the  exliibition  off'euds  against  morals 
or  decency,  or  endangers  life  or  limb,  by  what  is  required  of  the  child 
actor.  Its  application  is  to  all  public  exhibitions  or  shows.  That  any 
and  all  such  shall  be  deemed  prejudicial  to  the  interests  of  the  child, 
and  contrary  to  the  policy  of  the  State  to  permit,  was  for  the  legisla- 
ture to  consider  and  say. 

The  riglit'td  personal  liberty  is  not  infringed  upon  Ijecause  the  law 
imposes  limitations  or  restraints  upon  the  exercise  of  the  faculties  with 
which  the  child  may  be  more  or  less  exceptionally  endowed.  The  in- 
alienable right  of  the  child  or  adult  to  pursue  a  trade  is  indisputable  ; 
but  it  must  be  not  only  one  which  is  lawful,  but  which,  as  to  the  child 
of  immature  years,  the  State  or  sovereign,  as  jxn-e^s  jx<f;-/ce.  recognizes 
as  proper  and  safe.  It  ig  not  the  stiict  moralist's  view,  dictated  by 
prejudice,  but  the  view  from  the  standpoint  of  a  member  of  the  body 
politic,  which  ranges  the  judgment  in  support  of  legislative  interference 
to  i-estrain  the  parent  from  permitting  -an  employment  of  the  chi Id 
under  circumstances  deemed  unsuited  to  its  proper  mental,  moral,  or 
physical  development.  In  the  judgment  of  the  legislature  it  was 
deemed  as  unsuitable  for  the  youth  of  the  community,  under  a  certain 
age,  to  dance  or  to  perform  in  public  exhibitions  in  the  ways  men- 
tioned as  it  was  deemed  unsuitable  for  them  to  woik  in  the  factor}', 
except  under  certain  limitations  as  to  age,  hours,  etc. 

We  have  not  overlooked  certain  cases  referred  to  by  the  appellant's 
counsel  to  show  the  invalidity  of  this  legislation  as  an  exercise  of  the 
police  power  of  the  State,  or  to  show  a  violation  of  constitutional 
rights.     They  establish  that  the  legislature  has  no  right,  under   the 


CHAP.  X.]  PEOPLE   V.    CANNON.  841 

guise  of  protecting  health  or  morals,  to  enact  laws  which,  bearing  but 
remoteh',  if  at  all,  upon  these  matters  of  public  concern,  deprive  the 
citizen  of  the  right  to  pursue  a  lawful  occupation.  Such  were  In  re 
Jacobs,  98  N.  Y.  98  ;  People  v.  Marx,  99  N.  Y.  377,  2  N.  E.  29  ; 
Feojjle  V.  Gillson,  109  N.  Y.  389  17  N.  E.  343  ;  People  v.  Rosenberg, 
138  N.  Y.  410,  34  N.  E.  285.  We  are  referred  to  some  cases  in 
Illinois,  but  they  are  neither  applicable  nor  autlioritative  upon  the  ques- 
tion before  us.  ^ 

Further  discussion  is  unnecessarj'.  We  might  have  remained  satis-  ' 
fied  with  the  able  and  clear  exposition  of  his  views  b}-  the  learned 
justice  at  the  special  term  had  not  the  range  taken  by  the  arguments 
of  counsel  seemed  to  call  for  a  brief  expression  by  us  of  our  view  of 
the  principle  of  State  interference.  The  order  should  be  affirmed.  All 
concur.     Order  affirmed. 

^  ^         PEOPLE  V.   CANNON.  -^f^  <Xaa^  rKX  <HiuA. 

^    ^VvA^'^'^  ^^^^  YoKK  Court  of  Appeals.     1893.    ^a^  ttit    AJt-^LvJiM/^ 

Appeals  from  judgments  of  the  General  Term  of  the  Supreme  Court  Aj-xhi^^'^*^ 

in  the  first  judicial  department,  entered   upon  orders  which-  affirmed  -j^ol/z^   to 

judgments  convicting  the  defendants  of  violation  of  the  "  Bottling  Act "      .  ^CL  t^r^^ 


V 


(Chap.  377,  Laws  of  1887,  as  amended  by  chap.  181,  Laws  of  lo^.wy,  y  _             . 

entered  upon  verdicts  of  the  Court  of  General  Sessions  of  the  Peace  of  -UMM,     ^ 

the  city  and  county  of  New  York.  XL^H/^J^u/^ 

Each  defendant  was  convicted  upon  a  separate  indictment  and  trial  /^       i  • 

of  a   violation   of  what  is  described  in   the  various   records  as   the  j 

"Bottling  Act,"  and  known  as  chapter  377  of  the  Laws  of  1887,  as  -^^^  AAfiA^ 

amended  by  chapter  181  of  the  Laws  of  1888.  .    ,       tj 

The  first  three  sections  of  the  Act  are  here  alone  material.     The  title  ^^-^-'^^'^^'^ 

of  the  Act  and  the  sections  spoken  of  read  as  follows  :  ifir  "w  r^^^ 

' '  An  Act  to  protect  the  owners  of  bottles,  boxes,  siphons  and  kegs  ^^  ^tiuM 

used  in  the  sale  of  soda  waters,  mineral  and  aerated  waters,  porter,  ale,  ,      . 

cider,  ginger  ale,  milk,  cream,  small  beer,  lager  beer,  weiss  beer,  beer,  ^■^y'-^-^^^ 

white  beer  or  other  beverages."  ^  ...  tf     x  j 

1  Section  1  enables  dealers  in  soda  water  and  many  other  things,  who  furnish  the  'tt\SL  AAA^-*^ 

goods  in  stamped  bottles,  kegs,  etc.,  to  register  the  name  or  device  so  stamped.     Sec-  /    ^ 

tion  2  makes  criminal  the  filling  of  such  registered  bottles,  etc.,  with  the  substance  ^^ 

for  which  it  is  intended,  or  the  selling,  giving,  or  otherwise  disposing  of  them  without  ^I     L^^jJ!^ 

the  written  consent  of,  or  unless  purchased  from,  the  party  so  making  them.     Section  3  /           ^ 

makes  such  forbidden  use  of  the  vessels,  etc.,  by  any  other  party  than  the  one  whose  /a-^l  /yuC^r^ 
device  they  bear,  for  the  sale  of  certain  specified  contents,  or  the  buying,  selling,  using 

or  trafficking  in  such  vessels,  without  such  written  consent,  or  the  having  them,  by  (/y~VUM4^t^ 

any  junk  dealer,  or  second-liand  dealer,  in  his  possession,  without  such  written  consent,  lJ.         ^   ^^^^^ . 

—  presumptive  evidence  of  said  unlawful  use,  etc.  —  Ed.  j 

W^k    .^^^^S   JLu^U      M<^^\     -U    (hi    I^OO^J^C^tjitU^   ^.TV^tvoS^   ^  ^^-^^ 


A.d!x^  842    ^f,    j^ll'V^-^'-]  PEOPLE   iJ.    CANiNON.     iM ^^^^   [CIIAP.  V.    ^^'^'^ 

^•.  There  were  tliice  counts  in  each  indictment,  one  for  unlawfully  bu}'- 

^  '■  ing  from  a  person  to  the  grand  jury  unknown,  one  for  unlawfully  taking 

/i^u^tuJU.    from  a  person   to  the  grand  jur^'  unknown,   and  one   for  unlawfully 

^  -lifli'  -trafficking  in  and  disposing  of  in  a  manner  and  l-y  means  to  the  grand 

^       jury  unknown   certain  bottles  (describing  them    as   having  marks  on 

?4^A.^x>L      i\^Qn^^  etc.,  as  provided  for  in  the  first  section  of  the  above  Act).     Tlie 

jfit\C^i^vU.  defendants  are  dealers  in,  among  other  articles,  second-hand  bottles  of 

.  ,        all  descriptions      They  are  among  the  lai'gest  dealers  in  those  articles 

-^*'  i   in  the  city  of  Kew  York,  have  been  engaged  in  that  business  for  a 

n/eA    ^^     number  of  years,  and  their  stock  on  hand  at  the  time  when  the  occur- 

'        ,     rences  herein  spoken  of  took  place,  reached  in  each  case  to  the  number 

/  J     oX  several  hundred  thousand  bottles.     Neither  of  the  defendants  was 

A^  ^^^^      able  to  tell  of  whom  or  where  he  purchased  the  bottles  which  are  the 

c>^xZZ/^/^subiect  of  complaint  in  his  case.     They  purchase  all  kind  of  bottles 

^'.   I       from  whoever  comes  with  them,  if  satisfied  they  have  not  been  stolen. 

■^^'^^^^^^'^  I     Their  jjurchases  come  from  all  over  the  country  by  rail  and  in  vessels, 

tut  oJs--     axKl  packed  in  boxes  and  barrels,  and  they  are  ignorant  of  the  kinds  of 

uejL.»J(  Ji'f<-   bottles  that  thus  come  until  they  have  been  taken  from  the  various 

^^         railroad  stations  or  vessels  and  brought  to  their  stores  and  sorted  o u t . 

'■■^^^■^^'-^'^        The  defendants  claimed  to  be  ignorant  of  the  possession  of  any  of  the 

i/tajii-^^^i-^^  classes  of  bottles  described  in  the  indictments  until  their  places  were 

(jJtxJ^  tt    visited  by  the  police  under  a  search-warrant  sworn  out  by  a  detective 

(rO       ,  v    employed  by  an  association  of  manufiieturers  of  soda  waters,  beer,  etc., 

in-^^^-^^^'and  who  were  the  owners   of  bottles  registered  as  provided  for  b}- 

^/>:^the  law. 

'       '    '       Among  all  the  bottles  that  were  in  the  possession  of  the  defendants, 
^W^a-fw    tijei-e  are  involved  in  this  proceeding  but  very  few,  as  the  evidence 
■^jij^juAJL^     shows  there  were  only  found  an  insignificant  quantity  of  registered 
^^         bottles  as  compared  with  the  immense  numbers  of  others  which  were  on 
y-V      hand  and  dealt  in  by  the  defendants. 
tayu,<i/  Everett  P.   Wheeler,  for  appellants. 

?  /    '  J  (I         7rm.  J.  Gaynor,  for  Bartholf,  appellant. 
■MA^^^D        Wm.  Travers  Jerome,  for  respondents. 

fj^sjr^  Peckham,  J.     These  prosecutions  have  been  instituted  for  the  pur- 

7/.         pose  of  obtaining  a  decision  in  regard  to  the  validity'  of  the  law  under 

^^^1    >         which  the  convictions  have  been  secured.      Counsel  for  both  parties 

|p^^^^       have  so  stated,  and  the  courts  below  have  distinctly  ruled  upon  the 

various  propositions  raised,  so  that  the  constitutionalit}'  of  the  statute 

might  be  fairly  tested. 

'j/d Ima/^  ♦         It  is  claimed  that  the  Act  deprives  all  persons  other  than  the  manu- 

j/J\-  facturers  of  the  right  to  traffic  in  or  give  away  sparkling  or  aerated 

[^    ^         liquors  or  beer  which  have  ever  been  placed  in  a  trademark  bottle.     It 

is  said  that  if  the  manufacturer  refuses  to  sell  the  bottle,  he  in  effect 

ui:^iiuHuJ'  prohibits  the  sale  or  gift  of  that  which  is  contained  in  it,  except  over 

7/      AAj^   the  counter,  and  it  is  urged  that  the  legislature  cannot  grant  to  the 

^CAxviA^vv^   ^Jg^^-^^f^(^^^^^^.g^.  g^^^i^  ^  monopolj'. 

-J;^        It  is  needless  to  speculate  as  to  the  powers  of  the  legislature  upon 


CHAP,  v.]  PEOPLE   V.   CANNON.  843 


/Occ^./^ 


tliis  subject,  because  we  are  of  the  opinion  the  statute  is  not  susceptible  ^    ^     v^ 
of  anj  such  construction.  '"^^ '    Q 

It  is  made  unlawful  for  any  one  to  fill  up  with  soda  waters,  etc.,  any  -TuM  C*-*^ 
bottle  marked  and  distinguislied  as  in  the  first  section  of  the  Act  is  pro-   -/ca.v«f  ^ 
vided,  or  to  deface,  erase  or  obliterate  any  such  mark  on  such  bottle,  or     73.^^^^  p;^ 
to  sell,  etc.,  or  to  otherwise  dispose  of,  or  traffic  in  the  same,  without    /  y 

the  written  consent  of,  or  unless  the  same  have  been  purchased  from    i-iJrf^^^^^ 
the  person  whose  mark  is  on  the  bottle.     This  provision  of  the  Act    [Ai  .■U-i^<^ 
rd'ers  to   the  use   of  these  empty  bottles   by  some  one   other   than    la,4J^/'crL 
the  owner  of  the  marks  thereon,  and  after  the  original  contents  of     ^      V/xcX, 
such  bottles  have  been  taken  out,  and  then  unlawfully  using  or  traffick-    '^^ 
ing  in  the  empty  bottles. 

After  the  retail  dealer  or  any  one  else  has  purchased  the  soda  water  . 

or  beer  from  the  manufacturer,  and  the  same  has  been  delivered  to  him    J^OiAt'^^ 
packed  in  the  bottles  thus  marked,  he  is  not  prevented  by  anything  in  ^£u^  ZL^ 
the  statute  from  himself  selling  such  soda  water  or  beer  and  delivering      ^^     *^ 
the  same  to  the  purchaser  packed  in  the  same  bottles  in  which  it  was     /2>°i  ^  ^ 
delivered  to  him  from  the  manufacturers.     This  process  may  be  con-     ^        ^^ 
tinned  indefinitely.     The  Act  is  not  aimed  at  the  sale  and  delivery  of 
the  water  or  beer  packed  in  the  original  bottles  as  it  came  from  the   ■  i-€  a.   ^^ 
manufacturer,  but  it  is  aimed  at  an  unlawful  dealing  in  empty  bottles  .  i,^i^tuu. , 
that  have  been  marked,  and   after  their  original  contents   have  been     a       -^ 
used!     If  otlierwise,  it  is  clear  that  an  enormous  amount  of  the  business   ~''     ,       x_ 
of  the  manufacturers  would  be  curtailed.     It  is  a  fact  which  every  one  JU^-<M- 
knows,  that  large  amounts  of  the  liquors  originally  put  up  in  these    i/C-AuJ^ 
bottles  are  sold  by  the  manufacturers  to  the  retail  dealers,  who  sell        (j 
them  to  the  customers,  who  take  them  away  in  the  original  bottles  in   "^^.a.iAX/^U 
which  the  manufacturers  delivered  them  to  tlie  retail  dealers,  and  it       ^£^  ^^^ 
cannot  be  contended  with  an}'  degree  of  plausibility,  as  it  seems  to  us,  j^ 

that  there  is  anything  in  the  language  of  the  statute,  properly  con-     '^-^C-^^-^^^^^ 
strued,  which  prohibits  such  a  dealing  in  and  delivery  of  the  liquors    t^  Vv^ 
by  any  one  into  whose  possession  and  ownership  they  have  lawfully    ^ay9<  ^'^ 


come. 


Nor  is  there  any  just  foundation  for  the  assertion  that  the  Act  neces- 


.iVLJ^ 


sarily  destroys  or  unlawfully  decreases  the  trade  in  empty  bottles,  wMch  ckclt  ^'^^ 
is  a  fair  trade  and  one  entitled  to  the  equal  protection  of  the  law.  The  ^  it££t^ 
Act  contains  no  provision  in  regard  to  empty  bottles  in  general.     li- j^  ^     amI 

forbids  the  use  or  traflflc  in  certain  kinds  of  bottles  without  the  written  iS  ^^ 

consent  of  the  owners  of  the  marks  on  them,  or  unless  the}'  have  them-  ^^i^<^  ^<^6 

selves  once  sold  the  bottles.     It  is  not  necessary  that  they  should  have  - .    Ayii*' 

sold  to  the  person  using  them.     A  sale  of  the  bottles  to  any  one  there-  ■^'   ^^ 

after  precludes  the  application  of  the  provisions  of  the  statute.     A  'V-a.x^ 

bottle  that  has  been  marked  as  described  in  the  first  section,  and  has  j^\,fu:iji-^^ 
thereafter  been  used  by  the  owner  of  the   marks  for  the   purpose  of      ,   vvi.fiX*. 

identifying  in  the  market  the  particular  goods  manufactured  by  him  0 

and  put  up  in  such  bottles,  ought  not  to  be  used  for  other  purposes  ^{ajaiv^-^ 

against   the  will  of   the  manufacturer,   so  long  as  he   has   not   sold  ^  ^    j-i 


844  PEOPLE   V.    CANNON.  [CHAP.  V. 


the  bottles  to  any  one,  nor  autlioiizcd  any  one  to  use  or  trallic  in 
them  ;   in  other  hinguage,  so  long  as  he  continues  the  owner  of  the 

t'^i  '^^        bottles. 

Xx  And  this  kind  of  use  or  traffic  the  law  is  intended  to  prevent. 

Under  the  broadest  definition  of  the  term  liberty,  as  used  in  the  Con- 


^c,    <1 


\AM^'^ 


Hjl/nv^ .     stitution,  it  is  not  probable  that  any  one  would  contend  that  it  covers, 
/  or  ouuht  to  cover,  the  lil)ertv  of  dealing  in  proDerty  which  the  original 

*"  owner  has  not  sold  to  any  one  or  authorized  any  one  else  to  deal  in. 

.("i  C^^^     And  yet  the  claim  that  the  Act  destroys  the  trade  in  second-hand 
bottles  would  lead  to  this  result  if  it  were  allowed.     Because  the  Act 
prohibits  the  dealing  in  the  property  of  a  third  person  without  his  con- 
1^  ^-^^  sent,  it  may  be  that  the  business  of  the  second-hand  bottle-dealer  is 

i^f  OA"-^       affected  so  far  as  to  necessitate  further  precautions  in  regard  to  making 
purchases,   than  would  otherwise  be  necessary-.      Before    purchasing; 
'^  ^       second-hand  bottles  he  must  be  assured  that  the  person  selling  has  the 

^t^WU  right  to  sell  them,  and  that  he,  the  dealer,  has  the  right  to  buy  them. 
<7«/t^  hA^  This  may  require  more  of  an  ins|)ection  of  the  kinds  of  bottles  purchased 
jj  than  the  dealer  has  heretofore  been  accustomed  to  give,  but  there  is 
^^^  j[^  nothing  iuii)roper  in  such  obligation,  and  if  he  fail  to  i^erform  it  he  must 
/^Av  A^'^~  omit  it  at  his  peril.  The  Act  in  question  has  a  tendency  to  prevent 
I  J  £  frauds  upon  the  public  in  the  way  of  filUng  these  bottles  with  articles  of 
XJ^u^i'^^l  ^jjg  same  nature  as  originally  put  in  them,  but  not  manufactured  ])y  the 
i/Zu/ftt  ^  owners  of  the  marks.  Even  though  there  may  already  be  a  section  or 
'^\.  J  sections  of  the  Penal  Code  which  cover  such  a  subject,  that  does  not 
d)'^  ^  render  the  further  enactment  of  the  legislature  upon  the  same  subject 
^  \  void.     If  naturally  there  may  be  trouble  in  showing  that  the  person  of 

whom  the  second  hand  dealer  purchased  had  himself  obtained  the  bot- 
^^  ties  of  some  one  who  had  purchased  them  from  the  manufacturers,  or 
who  had  their  written  consent  to  deal  in,  use  or  traffic  in  them,  such 
'^"^'^'^■^^'''''^fact  is  only  an  additional  reason  for  not  purchasing  such  bottles  until  it 
oUi    ■  is  clear  that  they  may  be  lawfully  purchased.     The  Act  does,  undoubt- 

edly, in  this  respect  seriously  hamper  any  one  dealing  in  these  kinds  of 
empty  bottles.  I  can,  however,  see  no  constitutional  objection  to  the 
enactment  based  on  that  ground.  A  mere  possessor  of  one  of  these 
empty  bottles  may  wish  to  fill  it  without  using  the  trade-mark.  It  is 
true  he  is  prohibited  from  effacing  the  trade-mark,  or  erasing  it,  and 
this,  it  is  said,  destroys  all  property  in  the  bottle,  because  the  person 
who  possesses  it  can  make  no  earthly  use  of  it.  But  in  the  case  to 
w-hich  the  Act  is  applicable,  the  person  who  has  the  bottle  in  his  pos- 
session has  no  property  right  in  it,  and  never  did  have.  The  consc;, 
quence  may  be  that  he  has  no  right  to  use  the  bottle  himself,  and  that 
he  does  not  stand  in  a  position  with  regard  to  the  person  from  whom  he 
procured  the  bottle  and  contents,  to  require  such  ijerson  to  take  it  back 
and  give  him  its  value,  or  an  agreed  sum,  after  the  contents  have  been 
used.  This  may  be  his  misfortune,  but  it  does  not  create  any  right. 
As  he  never  owned  the  bottle,  or  had  any  i^-operty  right  in  it  of  that 
nature,  that  fact  does  not  and  cannot  affect  him. 


CHAP,  v.]  PEOPLE  V.   CA.NNON.  845 

I  fail  to  find  any  constitutional  defect  in  this  statute  so  far  as  its 
general  features  under  review  in  these  cases  are  concerned. 

Tliere  is  a  ground  of  invalidity  now  to  be  noticed  that  has  been  urged 
in  regard  to  that  portion  of  the  Act  which  relates  to  matters  of  evi- 
dence. That  portion  of  section  three  of  the  Act  which  provides  that 
the  having  by  an}'  junk  dealer  or  dealers  in  second-hand  articles,  pos- 
session of  these  kinds  of  marked  bottles,  or  kegs,  without  the  written 
consent  of  the  owner  of  such  marks,  shall  be  presumptive  evidence  of 
the  unlawful  use,  purchase  and  traffic  in  such  bottles,  is  asserted  to  be 
unconstitutional  as  an  invasion  by  the  legislature  of  the  domain  of  the 
judicial  branch  of  the  government.  K 

It  is  said  the  logislature  can  create  and  define  a  crime,  but  it 
cannot  declare  wliat  sliall  be  j^/^'wrf^  facie  evidence  of  its  commission. 
Whether  the  crime  as  defined  by  the  legislature  has  been  committed 
by  an  accused  is  a  question  for  the  court  and  jury,  and  it  is  claimed 
that  no  direction  to  the  court  or  jury  as  to  what  shall  be  considered 
prima  facie  proof  can  be  given  b}'  the  legislature.  It  may  be  remarked 
at  the  outset  that  this  question  does  not  arise  in  the  case  of  Cannon. 
The  defendant  in  that  case  agreed  upon  a  state  of  facts  upon  which  the 
judgment  of  tlie  court  and  jurj-  was  requested,  and  in  the  statement  it 
was  agreed  that  the  corporation  which  owned  the  marks  and  bottles  in 
question  had  never  granted  any  written  or  oral  consent  that  the  bottles 
should  be  nsed  or  trafficked  in  and  had  never  sold  or  given  awaj'  any 
such  bottle. 

In  the  other  two  cases  the  question  is  fairly  up,  and  must  be 
decided. 

The  legislature  of  this  State  possesses  the  whole  legislative  power  of 
the  people,  except  so  far  as  such  power  may  be  limited  by  our  Consti- 
tution. J3auk  of  Chenango  v.  Bvoivn^  26  N.  Y.  467.  The  power  to 
enact  such  a  provision  as  that  under  discussion  is  founded  upon  the 
jurisdiction  of  the  legislature  over  rules  of  evidence,  both  in  civil  and 
criminal  cases.  This  court  has  lately  had  the  question  before  it. 
Board  of  Excise  Commrs.  v.  Merchant,  103  N.  Y.  143.  The  Act  in 
that  case  provided  that  whenever  any  person  was  seen  to  drink  in 
a  shop,  etc.,  spirituous  liquors  which  were  forbidden  to  be  drank  therein, 
it  should  be  p?'i?/za.  facie  evidence  that  such  liquors  were  sold  by  the 
occupant  of  the  premises  or  his  agent  with  the  intent  that  tlie  same 
should  be  drank  therein.  The  defendant  was  an  occupant  of  premises 
where  liquor  could  not  be  legally  sold  to  be  drank  there,  and  he  was 
prosecuted  for  selling  the  same  in  violation  of  the  Act.  The  only  evi- 
dence of  a  sale  by  the  accused  occupant  was  the  fact  that  a  person  was 
seen  to  drink  liquor  upon  the  premises,  and  a  conviction  was  asked  for 
under  the  provisions  of  the  Act  quoted.  The  defendant  was  convicted, 
and  his  counsel  urged  that  the  Act  was  unconstitutional  on  the  ground 
that  it  violated  the  constitutional  guarantees  of  due  process  of  law  and 
trial  b}'  jurj-.  It  was  held  the  claim  was  unfounded  and  that  the  gen- 
eral power  of  the  legislature  to  prescribe  rules  of  evidence  and  methods 


846  PEOPLE   V.    CANXON.  [cHAP.  V. 

of  proof  was  uncloubted,  and  had  not  been  illegally  exercised  in  that 
case.  It  is  true  it  was  a  case  for  the  recovery  of  a  penalty  and  was 
brought  by  the  commissioners  of  excise,  and  a  civil  judgment  for  dam- 
ages was  recovered.  It  was,  however,  treated  as  a  qtcasi  criminal 
case  and  criminal  prosecutions  were  cited  in  support  of  the  principle 
decided  in  it. 

It  cannot  be  disputed  that  the  courts  of  this  and  other  States  are 
committed  to  the  general  principle  that  even  in  criminal  prosecutions 
the  legislature  may  with  some  limitations  enact  that  when  certain  facts 
have  been  proved  they  shall  hQ  irri ma  facie  evidence  of  the  existence  of 
the  main  fact  in  question.  (See  cases  cited  in  103  N.  Y.  143,  supra.) 
The  limitations  are  that  the  fact  ujDon  which  the  presumption  is  to  rest 
must  have  some  fair  relation  to,  or  natural  connection  with  the  main 
fact.  The  inference  of  the  existence  of  the  main  fact  because  of  the 
existence  of  the  fact  actually  proved,  must  not  be  merely  and  purely 
arbitrar}',  or  wholly  unreasonable,  unnatural  or  extraordinar}',  and  the 
accused  must  have  in  each  case  a  fair  opportunity  to  make  his  defence, 
and  to  submit  the  whole  case  to  the  jur}',  to  be  decided  b}-  it  after  it 
has  weighed  all  the  evidence  and  given  such  weight  to  the  presumption 
as  to  it  shall  seem  proper.  A  provision  of  this  kind  does  not  take  away 
or  impair  the  right  of  trial  by  jury.  It  does  not  in  reality  and  finally 
change  the  burden  of  proof.  The  people  must  at  all  times  sustain  the 
burden  of  proving  the  guilt  of  the  accused  beyond  a  reasonable  doubt . 
It,  in  substance,  enacts  that,  certain  facts  being  iM'oved,  the  jury  may 
regard  them,  if  believed,  as  sufficient  to  convict,  in  the  absence  of 
explanation  or  contradiction.  Even  in  that  case,  the  court  could  not 
legally  direct  a  conviction.  It  cannot  do  so  in  any  criminal  case.  That 
is  solely  for  the  jury,  and  it  could  have  the  right,  after  a  survey  of  the 
whole  case,  to  refuse  to  convict  unless  satisfied  beyond  a  reasonable 
doubt  of  the  guilt  of  the  accused,  even  though  the  statutory  prima 
facie  evidence  were  uncontradicted.  The  case  of  Commonwealth  v. 
Williams,  6  Gray,  1,  supports  this  view. 

Without  the  aid  of  the  statute,  the  presumption  provided  for  therein 
might  not  arise  from  the  facts  proved,  although  the  statute  says  they 
shall  be  sufficient  to  authorize  such  presumption.  The  leoislaturc  has 
the  power  to  make  these  facts  sufficient  to  authorize  the  presumption 
{State  V.  Mellor,  13  R.  I.  at  669),  and  the  jury  has  the  power,  in  the 
absence  of  all  other  evidence,  to  base  its  verdict  thereon,  if  sat i s fi ed 
'  that  the  defendant  is  guilty.  /But  the  jury  must  in  all  cases  be  satisfied 
of  guilt  beyond  a  reasonable  doubt,  and  the  enactment  in  regard  to  the 
p resumption  merely  permits,  b u t  cannot  in  effect  direct  the  jury  to  co n - 
vict  under  any  circumstances.">  The  dissenting  opinion  of  Mr.  Justice 
Thomas,  delivered  in  Commomcealth  v.  Williams,  6  Gra}',  supra, 
contains  all  that  can  be  said  against  the  validity  of  this  kind  of 
legislation. 

It  is  argued,  however,  that  assuming  the  validity  of  the  provision  in 
cases  of  excise  sales  and  kindred  cases,  such  as  having  in  possession 


CHAP,  v.]  PEOPLE    V.   CANNON.  847 

game  out  of  season  {Phelps  v.  Raceij,  GO  N.  Y.  10),  and  in  civil  cases, 
such  as  providing  that  tiie  complroller's  deed  upon  a  sale  of  land  for 
taxes  affords  a  presumption  of  the  regularit}'  of  all  prior  proceedings 
{Howard  v.  Moot,  64  N.  Y.  2G2  ;  Caiman  v.  Shattuck,  62  Id.  34<S),  yet 
the  principle  does  not  api)ly  to  a  case  like  this.  The  reason  alleged  is 
that  the  fact  which  is  to  be  regarded  as  jjr/»ia  facie  evidence  of  guilt, 
viz.^  the  possession  of  the  bottles  by  a  dealer  in  second-hand  bottles 
without  the  written  consent  of  the  ovvner,  was  not  one  sufficient!}' 
identified  in  ordinary  circumstances  with  guilt  to  make  it  the  foundation 
of  such  a  presumption. 

The  case  of  People  v.  Lijon,  27  Hun,  180,  was  a  prosecution  under 
the  same  section  of  the  statute  as  that  in  Commissioners  of  Excise  v. 
Merchant^  103  N.  Y.,  snpra.  One  of  the  judges  at  the  General  Term  in 
illustration  of  his  meaning  that  the  fact  from  which  the  inference  of  guilt 
may  be  drawn  should  have  some  kind  of  natural  reference  to,  or  bearing 
upon  the  main  fiict,  said  that  if  the  legislature  could  provide  for  such  a 
presumption,  it  could  enact  that  the  drinking  of  liquors  a  mile  distant 
from  such  premises  should  be  prima  facie  evidence  of  a  sale  on  the 
premises  with  intent  that  the  liquors  should  be  drank  there.  Or  it 
might  enact  that  if  a  dead  bod}'  were  found  in  an}-  house,  it  should  be 
privia  facie  evidence  that  the  occupier  of  the  house  had  nuuxlered  the 
deceased.  Tlie  learned  judge  thought  the  Act  in  question  was  entirely 
arbitrary  and  had  no  regard  to  the  connection  or  want  of  connection 
between  the  fact  from  wliich  the  presumption  was  to  flow  and  the  guilt 
of  the  accused.  Yet  this  particular  enactment,  thus  condemned  by  the 
Supreme  Court,  was  upheld  b}'  this  court  in  Commissioners  v.  3rer- 
chant,  supra,  103  N.  Y.  The  cases  cited  by  way  of  illustration  bj^  the 
learned  judge  in  his  opinion  in  the  Supreme  Court  are,  in  our  view,  far 
beyond  the  mark  and  contain  nothing  in  common  with  the  enactment 
here  under  review.  In  the  cases  supposed  there  would  be,  as  the 
learned  judge  said,  no  kind  of  connection  between  the  fact  proved  and 
the  main  fact  in  controversy.  Such  an  enactment  would  be  purely 
arbitrary.  In  this  case,  however,  we  think  such  connection  exists.  Of 
course  the  fact  from  which  the  presumption  is  to  be  drawn  may  exist 
without  the  existence  of  the  main  fact.  That  is  true  in  all  cases.  In 
other  words,  the  two  facts  are  not  necessarily  inseparable.  But  in  this 
case  the  fact  of  the  possession  of  these  kinds  of  bottles  by  a  dealer  in 
second-hand  articles  without  the  written  consent  of  the  owner,  while  it 
may  be  innocent,  yet  the  ))resumption  of  an  unlawful  use  or  traffic  in 
them  is  not  so  forced  or  so  extraordinary  as  to  be  regarded  by  sensible 
and  unprejudiced  men  as  unreasonable  or  unnatural.  It  is  some  evi- 
dence of  the  main  fact  and  the  strength  of  it  is  properly  a  matter  for 
legislative  enactment  in  the  first  instance,  subject  to  its  submission  to 
the  jury  for  its  deliberation  and  determination.  So  the  presumption 
from  the  possession  of  certain  birds  out  of  season,  that  they  were 
unlawfully  killed  or  taken  in  the  State,  is  not  a  certain  presumption  in 
any  sense.  A  person  might  of  course  have  the  birds  and  have  procured 
them  in  another  State,  and,  therefore,  not  be  guilty  of  a  violation  of 


848  PEOPLE    v.    CANNON.  [cHAP.  V. 

the  game  law.  Yet  the  presumption  of  a  vit)laUon  of  the  statute  is  not 
such  a  forced  and  unuatui'al  one  tluit  the  legishiture  may  not  enact  that 
it  shall  be  made  and  thus  leave  the  defendant  to  explain  it.  Common- 
wealth V.  yVlUiams,  G  Gray,  supra,  at  page  6  in  oi)inion  of  Shaw,  Ch,  J. 

Nor  can  it  be  successfully-  maintained  that  this  species  of  legislation 
is  to  be  confined  to  those  cases  where  the  explanation  of  the  fact  from 
which  the  presumption  is  to  arise  is  peculiarly  within  the  knowledge  of 
the  part3'  who  is  accused.  There  are  many  cases  in  the  books  (and 
the}-  are  cited  in  the  cases  already  alluded  to),  where  the  principle  is 
held  that  the  burden  of  proving  the  existence  of  a  fact  peculiarlj-  within 
the  knowledge  of  the  accused,  is  at  common  law  placed  upon  him. 
Potter  V.  Deijo,  19  Wend.  361  ;  PeoiAe  v.  Nijce,  34  Ilun,  298.  If 
legislation  were  confined  to  such  cases,  it  is  i)lain  that  it  would  be 
entirely  unnecessary  and  would  accomplish  nothing,  as  the  law  would 
place  the  burden  of  explanation  upon  the  defendant  without  the  aid  of 
the  statute.  Within  the  limitations  already  alluded  to  and  described, 
the  statute  may  provide  for  the  presumption  and  call  upon  the  defend- 
ant to  explain  the  fact.  In  prosecutions  for  the  sale  of  liquor  without 
a  license  the  Supreme  Court  of  Massachusetts  held  that  under  the  old 
Act  the  prosecution  must  prove  by  proper  evidence  that  tlic  accused 
had  no  license,  and  no  presumption  that  he  had  none  could  arise  from 
the  fact  of  selling.  Commo7nvealth  v,  Thurlow,  24  Pick.  374.  There- 
upon the  legislature  passed  an  Act  that  in  all  prosecutions  for  selling 
liquors,  the  legal  presumption  should  be  that  the  defendant  had  not 
been  licensed,  thus  reversing  what  had  been  held  to  be  the  common-law 
rule  in  CommomveaUh  v.  Thurloic,  sujira.  Tliis  was  held  to  be  within 
the  power  of  the  legislature.  Comvionweulth  v.  Kelly,  10  Cush.  G9,  70  ; 
Same  v.  Williams,  supra.  It  is  true,  the  fact  of  having  a  license  is 
one  peculiarly  within  the  knowledge  of  the  party  licensed.  Yet  the 
validity  of  legislation  is  recognized  in  these  cases,  although  it  enacts 
that  a  presumption  shall  be  made  from  certain  facts  which  at  common 
law  would  not  give  rise  to  any  such  presumption.  I  do  not  know  of 
any  constitutional  principle  which,  while  permitting  the  legislature  to 
enact  that  the  legal  presumption  arising  from  the  sale  of  liquor  shall  be 
that  the  person  selling  had  no  license,  yet,  at  the  same  time,  prevents 
the  enactment  of  a  provision  like  the  one  in  the  statute  under  discus- 
sion. If  the  legislature  have  the  power  in  the  first  instance,  I  think  it 
follows  that  it  must  have  the  power  in  the  other.  I  can  see  no  solid 
ground  for  distinction  between  the  tw-o  cases.  That  it  has  the  pow-er  in 
the  first  case  is  substantially  conceded  by  all.  The  inference  of  guilt, 
under  the  provision  in  question  here,  is  quite  as  strong  as  in  many  other 
cases  that  arise  under  statutory  enactments,  and  we  think  it  is  suf- 
ficiently reasonable  and  natural  to  warrant  a  legislature  in  passing  such 
an  Act.  The  opinion  of  this  court  upon  the  question  of  the  policy  of  this 
kind  of  legislation  is  not  at  all  material,  and  will  not,  therefore,  be  stated. 

Tiic  effect  of  the  presumption  is  to  call  upon  the  accused  for  some 
explanation.     If  none  be  given,  the  jury  may,  as  I   have  said,  still 


CHAP,  v.]  PEOPLE   V.    CANNON.  849 

refuse  to  convict ;  but  if  they  convict,  the  verdict  may  be  upheld  as 
founded  upon  sufficient  evidence.  The  provision  fills  all  the  require- 
ments of  an  Act  of  this  nature,  for  it  leaves  an  accused  a  fair  op- 
portunity  to  relieve  himself  from  the  })resumption,  to  explain  the 
circumstances  under  which  the  bottles  came  into  his  possession,  and 
that  they  were  of  such  a  nature  as  to  show  him  innocent  of  an  un lawful 
use,  purchase  or  traffic  therein. 

A  dealer  in  second-hand  bottles  intending  to  obey  the  law  would 
fairly  be  open  to  no  danger  of  unjust  conviction.  While  not  giving 
personal  supervision  to  the  receipt  of  bottles  coming  by  railroad  or 
vessel,  or  brought  to  him  for  sale,  he  ma}'  direct  his  agents  to  receive 
none  of  the  kind  mentioned,  and  when  they  come  from  abroad  he  may 
so  far  conditionally  receive  them  as  to  open  their  coverings  and  see 
what  they  are,  and  reject  those  which  he  cannot  lawfully  buy  or  deal 
in.  Such  a  momentary  or  conditional  possession,  fairly  cxi)lained  and 
believed  by  the  jury,  or  in  regard  to  which  they  were  doubtful,  would 
rebut  the  statutory  ])resumption  and  call  for  an  acquittal.  Proof  that 
the  bottles  in  question  had  been  sold,  or  written  authority  to  deal  in 
them  had  been  given  by  the  owners  to  some  one  else,  would  also  be  a 
defence.  It  might  be  difficult  of  proof,  it  is  said,  and  this  may  some- 
times be  true.  If  difficult  of  proof,  the  defendant  should  think  of  that 
before  he  purchases  or  deals  in  them,  and  decides  to  run  the  risk. 

The  Rhode  Island  Supreme  Court  has  held  an  Act  unconstitutional 
■which  in  substance  provided  that  the  notorious  character  of  the  prem- 
ises or  the  notoriously  bad  or  intemperate  character  of  the  persons 
frequenting  the  same,  or  the  keeping  of  implements  or  ai)purtenances 
usually  appertaining  to  a  grog  shop  where  liquors  are  sold,  should  be 
jn'iina  facie  evidence  that  the  liquors  were  kept  on  the  premises  for  the 
purpose  of  sale  within  the  State.  State  v.  Besivick,  13  R.  I.  211  ; 
State  V.  Kartz^  Id.  528.  The  same  court,  and  in  the  same  volume  of 
its  reports,  held  that  a  statute  providing  that  evidence  of  the  sale  or 
keeping  of  intoxicating  liquors  for  sale  in  any  building  should  he  2^rima 
facie  evidence  that  the  sale  or  keeping  was  illegal,  and  that  the  premises 
were  nuisances,  was  constitutional.  State  v.  Higgins,  13  R.  I.  330  ; 
State  V.  Mellor,  Id.  G66. 

In  the  Kartz  case  {s^qjra)  the  court  said  that  the  introduction  in  the 
law  of  the  principle  that  a  person  could  be  punished  for  what  other 
people  said  about  him  was  to  render  all  constitutional  provisions 
unavailing  for  his  protection.  The  distinction  is  plain,  I  think,  be- 
tween the  two  classes  of  cases,  and  the  statute  under  review  here  does 
not  come  within  the  principle  which  the  Rhode  Island  court  held  to  be 
a  violation  of  constitutional  rights. 

We  conclude  that  the  provision  in  question  cannot  be  assailed  upon 
any  constitutional  ground.   .   .   . 

Judgment  affirmed  in  Cannon  case  and  reversed  in  the  others} 

1  Compare  State  v.  Buck,  25  S.  W.  Rep.  573  (Mo.  1894);  Holmes  v.  Hunt,  122  Mass. 
505,  516-521.  — Ed. 
VOL.  I.  —  54 


_^J^fj^^       850  ^       BIKMINGHAM   MIN.   R.    R.    CO.    V.   PARSONS.  [CHAP.  V. 

/(Ai^.  In  Birmingham  Min.  E.  JR.  Co.  v.  Parsons,  13  So.  Rep/602  (Ala. 

July,  1893),  the  court  (Haralson,  J.)  said:  "In  Zeiglerx.  Railroad  i 

'1   fXUitu\(Co.,  58  Ala.  594,  we  had  occasion  to  pass  upon  the  validity  of  an  Act  //  -^J 
U3  -Au^      v;\i\q\\  i)rovided  :  '  That  from  and  after  the  passage  of  this  Act,  all  cor-     f^,X'^ 

porations,  person  or  persons,  owning  or  controlling  any  railroad  in  this 
*^^  ^^"    State,  shall  be  liable  for  all  damages  to  live  stock,  or  cattle  of  any  ^ 
\l^  <hf        kind,  caused  by  locomotive  or  railroad  cars.'     It  was  there  said  of  that  ^ 
/       ^        statute,  that  it  dispenses  with  all  proof  of  the  wrong  it  seeks  to  redress.  /> 
!l4\\r(^        '  It  declares  that  the  railroad  corporation  shall  make  reparation  for  an  ^    ^' 
U  yot'^^-     injury  inflicted  in  the  authorized  prosecution  of  its  lawful  business,  ^    ^^^ 
^  without  a  semblance  of  fault,  negligence,  or  w-ant  of  skill  in  its  e"^-^o^  >B 

-  fikc  ''^    plovees,  —  an  iniury  which  no  human  prudence  or  foresight  coukl  pre-   y  ^ 
vent:  and  vet  the  statute  will  not  allow  the  railroad  to  exculpate  itself  ^     -^ 
-      by  proof  of  the  highest  qualifications  and   most   w\atchful   vigilance.         '  ^: 
^    -^^  ~  This  falls  short  of  due  process  of  law.  .  .  .  We  cnn  perceive  of  noj:£.a-   ^     V 
x.d  ^^*-        son,   in  law  or  morals,   for  holding  them  [railroad  companies]  to  a  >^      ^ 
j^tij^-  stricter  measure  of  acT-ountabfUty  forTncTitable  mTsfoftunes  tliaiTwoviTil^     ^ 
.    ^        .      be  exacted   froninatural  persons  for  injuries  which  result  from  una-  '^    >^ 
Lm[_  AAJM^K  voidableaccident,  or  accidelits'wTjrcE  "no  Tiuman  prudence  can  foresee    T^/*"- 
1}  0    Cin    oi'  avert.^    This  case,   in  these  utterances,  has  been  many  ITme^ap-    ^      >• 
*    '  proved  by  ns,  and  other  courts.      Wilburn  y.  JlcCalley,  6^  Ala.  A43;    ^     .^^ 

(r^  ^U/  j/gaf7  V.  Zarkin,  66  Ala.  88  ;  Davis  v.  State,  68  Ala.  63  ;  Green  v.  :3  ^ 
i^ao^^  State,  73  Ala.  32;  Bailroad  Co.  v.  Hemhree,  85  Ala.  485,  5  South.  ^  X 
'  .  (jr-  L  Kep.  173.  Under  the  influence  of  these  decisions,  w-e  are  constrained  4  ^ 
-^  ^X*-^  ^^  ^^1^1  ^j^^^.  the  second  section  of  said  Act,  in  that  it  imposes  an  abso-  "^  1^ 
'.oXtk  lute  liability  on  railroad  companies,  irrespective  of  compliance  on  their     S;  '^^ 

^^^  ^       part  with  the  duties  prescribed  in  its  first  section,  and  without  any  fault    Jj\^ 
r-g^      on  their  part.  isGn  violation  of  constitutional  rightr>  The  first  section,  ^     ^ 
^"^^    ''^      however,  without  reference  to  the  second,  and  independently  of  it,  pre-  ^ 

Q/c.Cilt*-    oo..;Koc  fhn  rinty  nn  tl.PQP  r^nmpnnips  '  to  put  ju  cattlc  or  stock  guards      J    .^ 
upon  their  respective  lines  of  roads,  and  keep  the  same    in    order,'    -^    ^ 
^  yL^A4.'      and  for  a  failure  to  do  so  they  are  liable  to  the  party  injured  by  their      ^    3 
AtJtuJCtw^  neglect.    To  prescribe  the  duties  imposed  by  this  section,  w^e  have  seen,     ^  ^ 
/   /     •    <      is  a  valid  exercise  of  the  ])0wer  of  the  State.     T^may  be  maintained  as 
"X^"^'    such,  separate  from  the  second  section.     3  Brick.  Dig.  p.  128,  §28;     J    .^ 
^   H-Luf-  Exijarte  Cotcert,  92  Ala.  97,  9  South.  Rep.  225.     And  'every  person,     c:i  j^ 
,  Ud      '     while  violating  an  express  statute,  is  a  wrongdoer,  and  as  such  is,  ex  ^    ^ 
■  ^^  7iecessitate,  negligent  in  the  eye  of  the  law,  and  every  innocent  party  O 

4^:ji^x  rt       injured  tliereby  is  entitled  to  a  civil  remedy  therefor  ; '  and  when  a  duty  *^ 

^/  is  required,  and  no  remedy  provided  for  its  breach,  the  remedy  is  by 

^.    y-t^u-     common-law  procedure.    " Grey  v.  Trade  Co.,  55  Ala.  403;  Lowndes 
•fc  ^  OA.'O         Q(y  ^  Hunter,  49  Ala.  507  ;  Autauga  Co.  v.  Davis,  32  Ala.  703."  ^ 


K-  1  But  see  McCandless  v.  Richmond,  ^c.  R.  Co.,  16  S.  E.  Rep.  429  (So.  Ca.  Dec, 

,  ^^"^   1892). -Ed.  .  -     1    -r-  -ti^ 


CHAP,  v.]  STATE   V.   DIVINE.  851 


O,  ^.loiwU  ^\'\^ 


STATE  V.   DIVINE.  \    jvJ^  "U   ^^^-^'-^  «^ 

Supreme  Court  of  North  Carolina.     1887a'  '^ 

[98iV^.C.778.]  ^^^^    C^/^^<^f 

This  was  a  criminal  action,  tried  before  Clark,  Judge,  at  January  /-     -tA^      ' 
Term,  1887,  of  Robeson  Superior  Court.  ,d 

The  prosecution  of  the  defendant,  commenced  by  warrant,  issued  by  ^  ./^^^k^-^o^ 
a  justice  of  the  peace  of  Columbus  County,  and  tried  by  him,  charges  (i^idM^^^^^  ' 
tlie  defendtint,  as  superintendent  of  the  Wilmington,  C{)luml)ia,  and  f^iji^^  ,ox^(i 
Augusta  Railroad  Company',  with  a  personal  criminal  rcsptHisibility,  ,  •  /\i^ 
for  the  running  over  and  killing  two  cows,  the  property  of  J.  C.  '^^^  / 
Powell,  the  prosecutor,  by  a  train  moving  over  its  track,  on  May  19th,  {jr^  Ctu-r^ 
1886.  The  proceeding  is  instituted  under  the  Act  of  1880,  ch.  13,  ff{  cu<^  ^ 
which  is  brought  forward,  and  constitutes  the  four  last  sections,  2327, 


2328,  2329,  2330,  of  chapter  10  of  vol.  II.  of  The  Code.     [Tliese  sec-  'J^     ,         i 

tions  are  placed  in  a  note.^]  "pl^^^  . 

1  The  enactment  is  iu  these  words  :  —  V-iw 

"  When  au}'  cattle,  horses,  mules,  sheep  or  other  live  stock  shall  be  killed  or  in-  r^-Oi^/^^-'''^ 

jured  by  any  car  or  engine  running  on  any  railroad  in  the  counties  of  Columbus,  New  ^^  tA  ^ 

Hanover,  Brunswick,  Bladen,  Kobeson,  Richmond,  Anson,  Union,  Gaston,  Lincoln,  <J     \! 

Cleveland,  and  Burke,  it  shall  be  a  misdemeanor;  and  the  president,  receiver,  and  -iX.(liA-   ^-t''^^^ 

superintendent  of  such  road,  and  also  the  engineer  and  conductor  in  charge  of  the  (/•         'to  ti 

train  or  engine  by  which  such  killing  or  injnry  is  done,  may  be  indicted  for  such  kill-  T 

ing  or  injury  :  Provided,  if  the  parties  indictable  under  this  section  shall,  within  six  ju^t^ijA.  H^,  " 

months  after  the  killing  as  aforesaid  of  any  stock  mentioned  in  this  section,  ^and  ^     /^      fj^ 

before  anv  indictment  is  pi'eferred  or  warrant  issued,  pay  the  owner  of  such  stock  as  ^-^^^"^"^  , 

may  be  killed  his  charges  for  said  stock,  or  in  the  event  the  charges  are  too  high,  or  {^  (juX^^^ 
thought  to  be  so,  such  sum  or  sums  as  may  be  assessed  by  three  commissioners,  — 

one  to  be  chosen  by  the  party  whose  stock  is  killed  or  injured,  a  second  by  the  party  aa\    '^'^ 

accused  of  killing  the  same,  and  the  third  by  the  two  commissioners  chosen  as  above  J,J,/fa.)M^^ 

indicated,  who  shall  meet  at  some  place  in  the  county  where  the  stock  is  killed  or  "'^    A 

injured,  to  be  selected  by  the  parties  interested, —  within  thirty  days  after  they  are  ^    ^CAwH^ 

chosen  and  accepted,  §uchjmyiiientsh_a]l  heji  Imr  to  any  prosecution  under  this  sec-  H      ■f'  [rC^ 
tion ;  and  the  decision  of  two  of  said  commissioners  shall  be  final  for  the  purposes" -^^ 
of  this  section  :  Provided  further,  if  any  person  or  persons  liable  to  indictment  unt1er_^^T*^V  /vvj 

this   section,  shall  within   the  time  prescribed,  propose   to  the  party  endamaged  to  •       W  J 

refer  the  matter  of  damages  in  the  manner  hereinbefore  indicated  to  three  commis-  .p^tux^        ^ 

sioners,  and  the  party   endamaged  shall   refnse   or  decline   such   proposition,   such  '  /     . 

refusing  or  declining  shall  be  a  bar  to  any  prosecution  under  this  section  :  Provided  also,  Vv^  fh^VV^^-^ 

if  the  party  endamaged  shall,  at  any  time  before  the  indictment  is  preferred,  or  war-  a        ,j   L, 

rant  issued,  directly  or  indirectly,  receive  any  sum  in  full  compensation  of  his  damages.  '•^'^•^^^ 

such  compensation  shall  be  a  bar  to  any  prosecution  under  this  section ;  and  if  any  {j-cvVU-^  ' 

compensation  be  so  received  after  indictment  is  preferred  or  warrant  issued,  or  if  after  jw* 

said  time  the  party  accused  shall  pay  or  tender  to  the  owner  of  the  stock  killed  the  0^  /vuXM. 

value  of  the  same,  as  decided  by  the  commissioners,  as  above  provided,  —  in  either  f  ft'  ^  f^f 

case  the  prosecution  shall  go  no  further,  and  the  accused  shall  be  charged  only  with  /'^^        '      D 

accrued  cost."  /yt^Vi  ^^'^ 

The  second  section  prescribes  the  punishment  by  "  fine  not  exceeding  fifty  dollars,  j-  ' 

or  imprisonment  not  longer  than  tliirty  days."  .CTZ-t  tv^-**^ 

The  third  provides  that,  "  when  stock  is  killed  or  injured  by  a  running  engine  or  JUi\,\.{M^MlAi^ 

AA^Oyx,   a^Ui^dx.     pli-yK-O.     Lc^icc    <An^(^^*~*^    H^  /vUtd^^UA^  ^Hf  t^^vj*^^^' 


<i^  --eicc^.C«v^^      ^^    tiu.  (T^cxnM*  j^'itc}^^  f:^u-TS<JL.    ju^f^^^TK  /La^virifcd^/Loui^ 

M^  ■  852     '^^^^  ^^  STATE   V.    DiVINE.    ^^^"-^^^^  [CLUP.  v!^  ^^^ 

Jrw-dM^uJjL  Ijpon  an  appeal  ib  ttie  Superior  Court  from  the  judgment  rendered 
against  the  defeiulant  by  the  justice  of  the  peace,  a  special  verdict  was 
found  by  the  jury  in  these  words  :  "  The  cattle  were  killed  by  the  cars 
of  the  Wihiiington,  Columbia,  and  Augusta  Raih'oad  Compan}'  as 
alleged,  under  the  following  circumstances,  to  wit :  That  at  the  time 
of  tlie  killing  it  was  a  bright  moonlight  night,  about  10  r.  m.  ;  that  tlie 
train  was  on  schedule  time,  running  at  the  rate  of  forty  miles  per  hour ; 
that  the  cattle  could  have  1)een  seen  at  least  one  hundred  yards  ahead 
of  the  train  ;  that  the  cattle  were  not  seen  by  the  engineer  until  struck 
by  the  train  ;  that  the  cattle  were  the  property  of  J.  C.  Powell ;  that 
the  corporation  owning  the  road  is  the  same  whicli  was  chartered  by  tlic 


>A^a^ru^^  Act  of  March   1st,   1870,  as  the  Wilmington  and  Carolina  Railroad 


.  cW 


V. 


V 


/o  ,/vvu  ~ 


Company- ;  that  the  defendant  is  the  superintendent  of  the  said  Wil- 
mington, Columbia,  and  Augusta  Railroad  Company ;  that  the  said 
company  refused  to  refer  the  matter  to  arbitration  ;  that  the  defendant, 
J..  F.  Devine,  was  not  on  the  train  that  did  the  killing,  and  was  in  n o 
way  couiiected  with  said  killing." 

The  court  being  of  opinion  that  the  defendant  was  not  guilty,  ad- 
judged  that  he  go  without  day,  and  the  Solicitor  appealed. 

TJie  Attorneij- General,  for  the  State.  Mr.  Geo.  Davis  (by  brief), 
for  the  defendant.  .  .  . 

Smith,  C.  J.  .  .  .  The  objections  to  the  validitj-  of  the  legislation  are 
pointed  out  and  forcibly  presented  in  the  brief  of  defendant's  counsel, 
with  an  arra}-  of  numerous  rulings  in  their  support,  as  follows  :  — 


^/    /Tvy/A^-     ^'  I"  its  whole  structure  and  manifest  purpose  it  creates  out  of  a  pri- 
7)^     vate  civil  injury  a  public  prosecution,  to  subserve  the  interests  of  the 
injured  party,  and  to  be  put  in  operation  or  arrested  at  his  instance  and 
/  flection.     2.  It  assumes  a  criminal  liability  to  have  been  incurred  by 

OuJbtA^Vlr  an  officer  of  a  railroad  corporation,  without  his  concurrence  in  the  act 
_    t  '  of  the  subordinate,  and,  assuming  negligence  and  guilt,  puts  him  on 

'^  '  tlie  defensive,  and  requires  him  to  rei^el  the  presumption,  when  he  in 

xjix.  XXi>^  no  manner  participated  in  what  was  done.     3.  It  undertakes  to  drive 
ri^jf^A       ^^^  accused  to  an  adjustment  of  the  claim  for  damages  by  assenting  to 
^3      a  reference  to  arbitration,  and  to  deprive  liim  of  his  constitutional  right 
^KnT^^^^c^XQ  i^e  tried  in  the  courts  of  the  State  —  tribunals  |)rovided  under  tlie 
Constitution  —  and  by  a  properly  constituted  jury,  acting  under  a  judge. 
4.  It  places  at  the  election  of  the  claimant  the  institution  of  the  prose- 
cution, which  otherwise  is  suspended,   by  making  a  proposition  for  a 
reference.     5.  It  discriminates,  without  apparent  difference,    between 
counties  and  railroads,  giving  partial  operation  to  a  law,  general  in  its 
provisions  and  equally  applicable  to  all,  by  which  the  same  act  is  ren* 
dered  criminal  in  one  locality  which  is  not  so  in  another,  and  raising 

car  in  the  counties  enumerated,  it  shall  he  prima  facie  evidence  of  negligence  on  the 
trial  of  the  inJictment." 

The  fourth  section  declares  that  the  indictment  against  the  officers  of  railroad  com- 
panies shall  not  lie  "until  a  proposition  to  refer  the  matter  has  been  proposed  by  the 
party  claiming  that  he  has  been  damaged." 


CHAP,  v.]  STATE   V.    DIVINE.  853 

out  of  an  act  clone  by  one  cmplo^•ee  a  presumption  of  guilt  again st 
another  employee,  who  did  not,  in  any  way,  participate  in  it. 

We  do  not  perceive  any  difficult}-  in  the  Act  of  1856-57  ( The  Code, 
§  2326)  raising  a  presumption  of  negligence  on  the  part  of  the  company 
from  the  fact  of  killing  or  injuring  stock,  in  a  civil  suit  for  reparation, 
brought  within  six  months  thereafter,  as  is  explained  in  the  opinion  in 
Doggett  v.  Railroad,  81  N.  C.  459,  and  whose  validit}'  has  not  been 
questioned  in  the  nuraergus  cases  which  have  been  before  the  court. 
But  the  present  case  passes  far  beyond  the  limits  of  that  enactment,  in 
fastening  a  criminal  responsibility,  not  upon  the  |)rincipal  whose  agent 
does  the  injury,  but  upon  a  co-employee  in  the  same  general  service, 
and  this  not  upon  all,  but  specially  upon  railroads  that  run  through  or 
in  particular  counties. 

We  do  not  say  that  there  ma}-  not  be  local  legislation,  for  it  is  very 
common  in  our  statute-books,  but  that  an  act  divested  of  any  peculiar 
c i rcumstances,  and  per  se  made  indictable,  should  be  so  throughout  the 
S tate.  as  essential  to  that  equality  and  uniformity  which  are  fundamen- 
tal conditions  of  all  just  and  constitutional  legislation. 

Looking  at  the  indictment,  it  will  be  seen  that  the  onl}'  material  alle- 
gations are,  that  the  prosecutor's  cattle  were  killed  b}'  a  moving  train 
on  the  road  of  the  company  of  which  the  defendant  is  superintendent, 
without  connecting  him  with  the  act ;  and  scarcely  more  definite  is  the 
special  verdict. 

Do  these  words  impute  crime,  and  upon  mere  proof  of  these  facts  is 
the  charge  established,  and  must  the  defendant  be  convicted  unless  he 
repels  the  negligence  which  the  statute  presumes  in  the  subordinate 
employed  in  managing  the  train?  The  very  question  involves  an  an- 
swer, unless  all  the  safeguards  thrown  around  one  accused  of  crime  are 
disregarded,  and  he  left  without  their  protection.  The  defendant  was 
not  on  the  train  when  the  accident  occurred,  and  has  no  personal  rela- 
tion to  it,  except  such  as  results  from  his  position  as  a  higher  officer  of 
the  road,  —  making  the  offence  one  by  construction.  Judge  Cooley, 
in  his  work  on  Constitutional  Limitations,  at  page  309,  referring  to 
a  trial  for  criminal  offences  of  ditferent  grades,  uses  this  impressive  lan- 
guage :  "The  mode  of  investigating  the  facts,  however,  is  the  same  in 
all,  and  this  is  thi-ough  a  trial  by  jury,  surrounded  by  certain  safe- 
guards, which  are  a  well-understood  part  of  the  sj'stem,  and  which 
the  government  cannot  dispense  with,"  meaning,  as  we  understand, 
that  the  charge  must  go  before  the  jury,  and  the  guilt  of  the  accused 
proved  to  them,  with  the  presum])tion  of  innocence  until  this  is  done. 

In  Cumminr/s  v.  Missouri,  4  Wall.  328,  Mr.  Justice  Field,  referring 
to  certain  enactments  in  that  State,  says:  "The  clauses  in  question 
subvert  the  presumption  of  innocence,  and  alter  the  rules  of  evidence 
which,  heretofore,  under  the  universally  recognized  principles  of  the 
common  law,  have  been  supposed  to  be  fundamental  and  unchange- 
able." "But  I  have  no  hesitation  in  saying,"  remarks  Selden,  J.,  in 
Wynehamer  v.  The  People,  13  N.  Y.  446,  "  That  they  (the  legislature) 


854  OHIO    AND   MISSISSIPPI   RAILAYAY   CO.    V.    LACKEY.       [CHAP.  V. 

cannot  subvert  tliat  fundamental  rule  of  justice  which  holds  that  every 
one  shall  be  i^resumed  innocent  until  he  is  proved  guilty. ' ' 

The  case  is  not  analogous  to  that  wherein  for  civil  purposes  negli- 
gence is  inferred  from  tlie  fact  of  killing  stock,  and  requiring  matters 
in  excuse  to  be  sliown,  which  lie  peculiarly'  within  the  knowledge  of 
the  agent  who  perpetrated  the  act,  or  controls  the  running  of  the 
engine  when  it  is  done;  nor  to  the  statute  {The  Code,^  1005)  which 
makes  the  having  about  the  person  one  of  the.deadl}'  weapons  forbidden 
to  be  carried,  or  \i orn ^  jjrima  facie  evidence  of  concealment;  for  this 
is  the  sole  personal  act  of  the  party,  of  the  consequences  of  which  he  is 
aware,  and  because  a  small  weapon,  if  concealed,  would  be  almost 
impossible  of  proof  direct,  while  the  possession  of  such  is  intimatel}'  and 
naturally  connected  with  the  secret  carrying,  and  furnishes  strong  evi- 
dence of  the  fact. 

In  San  Manteo  v.  Railroad,  8  Am.  &  Eng.  R.  R.  Cases,  10,  in  con- 
struing the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States,  it  is  said  :  "  Whatever  the  State  may  do,  it  cannot  deprive  any 
one  within  its  jurisdiction  of  the  equal  protection  of  the  laws.  And  by 
equal  protection  of  the  laws  is  meant  equal  securit}'  under  them,  by 
every  one  on  similar  terms  in  his  life,  his  liberty,  his  property,  and  in 
the  pursuit  of  happiness." 

Substantially'  the  same  doctrine  is  announced,  and  by  the  same  emi- 
nent judge  (Mr.  Justice  Field),  in  Sarbier  v.  Connolly,  113  U.  S.  31, 
in  which  he  adds,  "  that  no  greater  burdens  should  be  laid  upon  one 
than  are  laid  upon  others  in  the  same  calling  and  condition. " 

From  what  has  been  said,  it  results  that  the  legislation  in  question 
has  not  the  sanction  of  the  Constitution,  and  cannot  be  upheld  as  within 
the  competency  of  the  law-making  power  to  enact. 

We  have  gone  into  this  inquiry  in  order  to  settle  the  question  of  the 
validity  of  the  statute  in  the  application  to  the  case  before  us,  and 
because  it  will  practically  put  an  end  to  the  litigation.  But  for  the 
defect  in  the  special  verdict  we  are  compelled  to  direct  that  it  be  set 
aside  for  further  proceedings  in  the  court  below. 

yX  Reversed  and  special  verdict  set  aside. 

,.^ 


V^ 


OHIO  AND  MISSISSIPPI   RAILWAY  COMPANY  v.  LACKEY. 
Supreme  Court  op  Illinois.     1875. 

[78  ///.  55.] 

Appeal  from  the  Circuit  Court  of  Marion  County ;  the  Hon.  Silas 
L.  Bryan,  Judge,  presiding.     Mr.  If.  P.  Buxton,  for  the  appellant. 
Mr.  Justice  Breese  delivered  the  opinion  of  the  court : 
This  is  an  appeal  from  the  judgment  of  the  Marion  Circuit  Court, 


CHAP,  v.]       OHIO    AND    MISSISSIPPI    PvAILWAY    CO.    V.    LACKEY.  855 

rendered  at  the  October  term,  1870,  upon  the  following  agreed  state  of 
facts : 

"  It  was  agreed  in  this  case  that,  during  the  year  1869,  three  persons 
were  run  over  and  killed  by  trains  on  the  railroad  of  appellant,  in 
Marion  County,  and  the  appellee,  being  coroner  of  said  county  at  the 
time,  held  an  inquest  in  each  case,  the  expenses  of  wliich,  together  with 
the  costs  of  burial,  amount,  in  the  aggregate,  to  $91.15  ;  tliat  if  appel- 
lant was,  in  law,  liable  to  appellee,  upon  the  facts  stated,  for  the  above 
amount,  then  judgment  should  be  rendered  in  favor  of  appellee  there- 
for, and  if  not  so  liable,  then  judgment  should  be  for  appellant,  with 
the  right  to  either  i)art3^  to  appeal." 

In  1855,  the  General  Assembly  of  this  State  passed  an  Act  entitled 
*' An  Act  to  provide  for  the  burial  of  the  dead  occurring  on  railroads, 
and  in  or  by  vehicles  carrying  passengers,"  in  the  second  section  of 
which.  Act  it  is  provided  that  "  every  railroad  company  running  cars 
within  this  State  shall  be  liable  for  all  the  expense  of  tlie  coroner  and 
his  inquest,  and  the  burial  of  all  persons  who  may  die  on  the  cars,  or 
who  may  be  killed  by  collision,  or  other  accident  occurring  to  such  cars, 
or  otherwise;  and  any  coroner,  city,  town,  or  person  who  shall  take 
charge  of  and  decently  inter  an}-  such  body  or  corpse,  or  cause  an  in- 
quest to  be  held  over  such  corpse,  shall  have  cause  of  action  against 
such  company,  before  any  court  having  competent  jurisdiction."  Sess. 
Laws,  1855,  p.  170;  Scates'  Comp.  423. 

It  is  insisted  by  appellant  that  this  statute  is  not  within  the  constitu- 
tional competency  of  the  General  Assenibl}'  to  enact,  as  it  places  the 
burden  of  these  expenses  upon  the  railroad  companies,  which,  in  other 
cases  of  like  nature,  is  placed  upon  the  estate  of  the  deceased,  or  upon 
the  county  in  which  the  accident  ma}^  occur.  This  is  the  general  law. 
R.  S.  1845,  ch.  99,  title,  "  Sheriffs  and  Coroners,"  sec.  23  ;  R.  S.  1874, 
sec.  21,  title,  "  Coroners." 

It  may,  very  pertinentlj',  be  asked.  Why  this  distinction?  On  what 
principle  is  it  that' railroad  corporations,  without  any  fault  on  their  part, 
shall  be  compelled  to  pay  charges  which,  in  other  cases,  are  borne  bj'the 
property  of  the  deceased,  or,  in  default  thereof,  by  the  county  in  which 
the  accident  occurred  ? 

An  examination  of  the  section  will  show  that  no  default,  or  negligence 
of  any  kind,  need  be  established  against  the  railroad  company,  but  they 
are  mulcted  in  heav}'  charges  if,  notwithstanding  all  their  care  and  cau- 
tion, a  death  should  occur  on  one  of  their  cars,  no  matter  how  caused, 
even  if  by  the  party's  own  hand.  Running  of  trains  by  these  corpora- 
tions is  lawful,  and  of  great  public  benefit.  It  is  not  claimed  that  the 
liabilit}'  attaches  for  a  violation  of  any  law,  the  omission  of  any  duty, 
or  the  want  of  proper  care  and  skill  in  running  their  trains.  The  penalt}' 
is  not  aimed  at  anything  of  this  kind.  We  say  penalty,  for  it  is  in  the 
nature  of  a  penalty,  and  there  is  a  constitutional  inhibition  against  im- 
posing penalties  where  no  law  has  been  violated  or  duty  neglected. 
Neither  is  pretended  in  this  case,  nor  are  they  in  the  contemplation  of 


856  TOLEDO,   ETC.   RAILWAY   CO.   V.   JACKSONVILLE.        [CHAP.  V. 

the  statute.  A  passenger  on  the  train  dies  from  sickness.  He  is  a  man 
of  wealth.  Wliy  should  his  burial  expenses  be  charged  to  the  railroad 
company?  There  is  neither  reason  nor  justice  in  it;  and  if  he  be  poor, 
having  not  the  means  for  a  decent  burial,  the  general  law  makes  ample 
provision  for  such  cases.  As  argued  by  the  counsel  for  appellant,  the 
law  attempts  to  place  what  is  properly  a  public  burden  ui)on  these  cor- 
porations, which  should  be  borne  by  all  alike,  and  discharged  out  of 
public  funds  raised  b}-  equal  and  uniform  taxation. 

This  may  be  considered  in  the  light  of  a  special  tax,  for  which  there 
is  no  sanction  in  the  Constitution.  We  have  not  been  furnished  with 
any  brief,  points,  or  argument  for  the  appellee.  The  views  presented 
by  appellant  satisfy  us  the  law  in  question  cannot  be  sustained  as  a 
constitutional  enactment. 

In  1874,  the  General  Assembly  repealed  this  statute,  by  chap.  131, 
title,  "Statutes,"  R.  S.  1022,  but,  at  the  same  session,  re-enacted  it 
substantially,  giving  the  power  to  sue,  not  to  the  coroner,  as  here,  but 
to  the  county,     lb.,  title,  "Coroners,"  283,  sec.  22. 

For  the  reasons  given,  the  judgment  is  reversed. 

Judgment  reversed. 


TOLEDO,   ETC.   RAILWAY  COMPANY  v.  JACKSONVILLE. 

Supreme  Court  of  Illinois.     1873. 

[67  ///.  37.] 

Appeal  from  the  Circuit  Court  of  Morgan  Count}' ;  the  Hon.  Charles 
D.  Hodges,  Judge,  presiding. 

This  was  a  suit  brought  by  the  city  of  Jacksonville  against  the 
Toledo,  Wabash,  and  Western  Raihwad  Compan}-,  before  a  justice  of 
the  peace,  to  recover  a  penalty  for  a  violation  of  the  ordinance  of  the 
cit}'  referred  to  in  the  opinion  of  the  court.  The  caus6  was  taken  to  the 
Circuit  Court  by  appeal,  where  a  trial  was  had  before  court,  without  a 
juiy.  The  court  found  the  defendant  guiltj-,  and  rendered  judgment  in 
favor  of  the  plaintiff  for  $50.  The  defendant  appealed,  Mr.  William 
H.  Barnes,  for  the  appellant.     Mr.  E(]vmrd  Dxtnn,  for  the  appellee. 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court : 

This  action  was  brought  to  recover  a  penalty  for  a  failure  to  comply 
with  an  ordinance  of  the  city  which  required  the  railroad  company  to 
keep  a  flagman  by  day  and  a  red  lantern  by  night  at  the  point  where  its 
track  crosses  the  street  or  State  road  just  west  of  the  bridge  known  as 
"  Rock  Bridge." 

It  is  stipulated  that  the  compan}'  did  not  keep  a  flagman  at  the  cross- 
ing indicated ;  that  it  is  within  the  bounds  of  the  cit}- ;  that  it  is  an 
important  crossing,  and  much  used  ;  that  it  has  been  so  used  b}'  the 
railroad  and  the  inhabitants  for  the  last  twentj'-five  years,  and  that,  by 
resolution  of  the  city  council,  the  company  is  not  required,  at  this  point, 


CHAP,  v.]        TOLEDO,    ETC.    RAILWAY    CO.    V.    JACKSONVILLE.  857     '/ 

to  run  its  trains  at  ii  rate  of  speed  not  greater  than  eight  miles  per  hour, 
as  required  by  general  ordinanec. 

The  charter  of  the  city  contains  the  usual  grants  of  power  to  pass 
such  ordinances  as  may  be  deemed  necessary  for  the  good  government 
of  the  city,  to  control  streets  and  alleys,  to  declare  what  shall  be  deemed 
a  nuisance  and  abate  the  same,  and  to  control  the  laying  of  railroad 
tracks  in  the  streets  and  alleys.  It  contains  no  express  grant  of  power 
to  pass  the  ordinance  in  question.  The  right  to  do  so  is  claimed  under 
the  police  power  of  the  municipality. 

Waiving  the  question  of  the  power  of  the  city  to  pass  the  ordinance 
without  being  expressly  authorized  by  the  General  Assembly,  we  shall 
treat  the  case  as  though  the  city  had  the  right,  by  the  grants  in  its 
charter,  to  exercise  all  the  power  in  the  regulation  of  its  domestic  affairs 
that  the  State  could  do  for  the  general  welfare  of  the  people. 

There  can  be  no  question  that  railway  corporations  are  subject  to 
police  regulations  as  well  as  private  citizens.  The  General  Assembly, 
when  the  public  exigencies  require  it,  has  power  to  regulate  corporations 
in  their  franchises  so  as  to  provide  for  the  public  safety.  The  exercise 
of  this  right  in  no  manner  interferes  with  or  impairs  the  powers  con- 
ferred by  their  Acts  of  Incorporation.  The  G.  and  C.  U.  B.  R.  Co. 
V.  Loomis,  13  111.  518  ;  Thorpe  v.  Rutland  and  BitrUngton  R.  R.,  27 
Ver.  140. 

Under  this  power,  it  has  been  held  that  the  legislature  ma}'  require 
railroad  corporations,  notwithstanding  no  such  right  has  been  reserved 
in  the  charters,  to  fence  their  tracks,  to  put  in  cattle  guards,  to  place 
upon  their  engines  a  bell,  and  to  do  many  other  things  for  the  protection 
of  life  and  propert}'.  This  power  is  inherent  in  the  State,  and  it  can- 
not part  irrevocably  with  its  control  over  that  which  is  for  the  health, 
safety,  and  welfare  of  societ}'. 

But  such  regulations  must  be  what  the}^  purport  to  be,  police  regula- 
tions, and  must  be  reasonable  when  applied  to  corporations  or  indi- 
viduals. What  are  reasonable  regulations,  and  what  are  subjects  of 
police  powers,  must  necessarily  be  judicial  questions.  The  law-making 
power  is  the  sole  judge  when  the  necessity  exists,  and  when,  if  at  all,  it 
will  exercise  the  right  to  enact  such  laws. 

Like  other  powei's  of  government,  there  are  constitutional  limitations 
to  its  exercise.  It  is  not  within  the  power  of  the  General  Assembl}^ 
under  the  pretence  of  exercising  the  police  power  of  the  State,  to  enact 
laws  not  necessary-  to  the  preservation  of  the  health  and  safet}'  of  the 
community  that  will  be  oppressive  and  burdensome  upon  the  citizen.  If 
it  should  prohibit  that  which  is  harmless  in  itself,  or  command  that  to 
be  done  which  does  not  tend  to  promote  the  health,  safety,  or  welfare 
of  society,  it  would  be  an  unauthorized  exercise  of  power,  and  it  would 
be  the  duty  of  the  courts  to  declare  such  legislation  void. 

It  seems  to  us  that  the  ordinance  in  this  case  imposes  an  unreasonable 
burden  upon  tlie  railroad  com[)any.  There  is  but  a  single  track,  so  far 
as  the  record  discloses,  at  the  point  where  it  requires  the  services  of  a 


858  TOLEDO,   ETC.    RAILWAY    CO.    V.   J.VCK.SONVILLE.        [cHAP.  V. 

flagmau,  and  only  the  usual  trains  of  the  company  pass  over  it.  It  is 
totally  unlike  a  place  where  a  number  of  tracks  cross  a  public  street 
upon  which  there  is  a  great  amount  of  travel,  where  trains  are  made 
up,  and  where  the  trains  and  locomotives  doing  the  work  pass  and  repass 
each  other  at  short  intervals.  The  frequenc}'  with  which  trains  pass 
and  repass  at  such  places  renders  the  dangers  to  be  apprehended  con- 
stantly imminent,  and  the  legislature  may  so  declare  and  make  it  obli- 
gatory on  the  company  to  adopt  measures  to  secure  the  public  safet}'. 
The  rights  of  the  company  and  the  public  to  the  use  of  the  crossing  are 
mutual,  but  it  is  the  duty  of  the  company  to  provide  the  proper  safe- 
guards, and  the  degree  of  diligence  must  be  in  proportion  to  the  haz- 
ard. A  regulation  that  would  require  the  company  to  place  a  flagman 
at  such  a  place,  or  at  any  place  where  danger  to  the  public  safety,  in 
the  judgment  of  prudent  persons,  might  be  apprehended  at  any  time, 
would  be  a  reasonable  one,  and  could,  unquestionably,  be  enforced. 
There  can  be  no  necessity,  however,  for  the  services  of  a  flagman  at  a 
crossing  of  a  public  highwa}'  in  the  country,  where  there  is  but  little 
travel.  There,  it  will  be  a  sufficient  protection  if  the  compan}-  shall  be 
required  to  erect  signs  that  will  notify  persons  that  they  are  approaching 
a  railroad  crossing,  and  to  give  the  usual  signals.  It  is  then  the  duty 
of  the  citizen  to  exercise  a  reasonable  precaution  for  the  safety'  of  him- 
self and  his  propert3\ 

It  would  hardh'  be  insisted  a  regulation  that  would  compel  a  railway 
company'  to  maintain  a  flagman  at  every  crossing  of  a  public  road  or 
street  on  its  entire  line  would  be  demanded  by  the  public  exigencies,  or 
be  within  the  constitutional  exercise  of  the  police  power  of  the  State. 
It  is  a  matter  of  which  we  ma^"  take  judicial  notice,  there  does  not  now 
exist  a  necessity  to  enforce  in  this  State  many  of  those  rigid  regulations 
that  have  been  adopted  on  some  of  the  English  railways,  and  in  some 
of  the  densel}'  populated  countries  on  the  continent  of  Europe.  Doubt- 
less, as  the  population  increases  and  the  dangers  multiply,  it  will  be- 
come necessary,  in  this  country,  to  increase  precautionary  measui-es  for 
the  public  safety,  and  the  companies  will  be  compelled  to  bear  the  ad- 
ditional burden  made  necessary  by  the  hazardous  business  in  which 
they  are  engaged.  It  is  their  work  that  renders  public  crossings  danger- 
ous, and  hence  it  is  the}'  may  be  compelled  to  bear  the  expenses  of  such 
measures  as  ma^'  be  adopted  to  secure  the  lives  and  propertj'  of  those 
who  have  an  equal  right  with  them  to  the  use  of  the  crossing  on  the 
liighwa}-. 

There  is  nothing  at  the  crossing  where  the  company  is  required,  by 
the  provisions  of  the  ordinance  in  the  case  at  bar,  to  keep  a  flagman, 
that  makes  it  unusually  dangerous.  So  far  as  we  know,  it  is  an  ordinary 
crossing.  There  is  but  a  single  track,  on  which  onl^'  the  usual  trains 
pass  at  regular  and  irregular  intervals  and  distance  apart.  The  cit}' 
has  not  even  deemed  it  advisable  to  require  the  company  to  slacken  the 
speed  of  its  trains  when  passing  this  point,  as  it  is  compelled  to  do  by 
ordinance  when  crossing  other  streets  in  the  cit}'.     If  the  company  can 


CHAP,  v.]  EX   PARTE   HODGES.  859 

be  compelled  to  maintain  a  flagman  at  this  point,  there  is  no  reason  v.by 
it  could  not  be  compelled  to  keep  one  at  every  road  and  street  crossing 
on  its  entire  line.  Tliat  there  are  places  where  the  danger  to  be  appre- 
hended is  so  constant  and  imminent,  by  reason  of  the  construction  of 
the  passage-way  over  the  track,  the  company  may  be  required  to  employ 
a  flagman  to  warn  persons  of  the  danger  and  conduct  them  across,  we 
entertain  no  doubt,  but  the  point  designated  in  this  ordinance  is  not 
such  a  one,  at  least  it  does  not  appear  to  be  so  from  the  ordinance  it- 
self, or  from  anything  in  the  record. 

The  conclusion  that  we  have  reached  is,  that  the  ordinance  under 
which  it  was  sought  to  compel  the  railroad  company  to  maintain  a  flag- 
man at  the  point  designated  is  not  a  reasonable  requirement,  and  is 
therefore  within  the  constitutional  limitations  on  the  exercise  of  the 
police. 

The  judgment  of  the  court  below  finding  appellant  guilty  is  contrary 
to  law,  and  must  be  reversed. 

Judgment  reversed. 


EX  PARTE  HODGES. 
Supreme  Court  of  California.     1890. 

[87  Cal  162.] 

Application  to  the  Supreme  Court  for  a  discharge  on  a  writ  of  habeas 
corpus.     The  facts  are  stated  in  the  opinion  of  the  court. 

Latimer  &  Sroion,  for  petitioner.      IV.  S.  Tinning^  for  respondent. 

Works,  J.  This  is  an  application  for  a  writ  of  habeas  corpus.  The 
Board  of  Supervisors  of  Contra  Costa  County  enacted  in  the  following 
ordinance.     [It  is  found  below  in  the  note.^] 

The  petitioner  was  convicted  of  a  violation  of  this  ordinance,  sen- 
tenced to  pa}-  a  fine,  and  in  default  of  payment,  was  committed  to 
the  county  jail.  He  now  prosecutes  this  proceeding,  and  asks  that  he 
be  discharged. 

The  question  as  to  the  constitutionality  of  the  ordinance  is  gravely 

1  "An  ordinance  to  provide  for  the  extermination  and  destruction  of  ground-squir- 
rels in  the  county  of  Contra  Costa. 

"The  Board  of  Supervisors  of  the  county  of  Contra  Costa  do  ordain  as  follows:  — 

"  See.  1 .  Ground-squirrels  infesting  lauds  in  the  county  of  Contra  Costa  are  hereby 
declared  to  be  a  public  nuisance. 

"  Sec.  2.  All  owners  and  occupants  of  lands  within  the  county  of  Contra  Costa  are 
hereby  required,  within  ninety  days  after  the  taking  effect  of  this  ordinance,  to  exter- 
minate and  destroy  the  ground-squirrels  on  their  respective  lands,  and  thereafter  to 
keep  said  lands  free  and  clear  therefrom. 

"  Sec.  .3.  Any  person  violating  any  of  the  provisions  of  this  ordinance  shall  be 
deemed  guilty  of  a  misdemeanor. 

"  Sec.  4.  This  ordinance  shall  take  effect  and  be  in  force  on  the  thirtieth  day  of 
November,  1889." 


860  EX    PARTE   HODGES.  [CIIAP.  V. 

and  Icarnedh'  discussed  by  counsel  on  both  sides,  and  Cooley's  Con- 
stitutional Limitations,  Potter's  Dwarris  on  Consti'uetion  of  Statutes, 
Sedgwick  on  Constitutional  Law,  and  other  constitutional  authorities, 
and  decided  cases  innumerable,  are  cited  in  aid  of  and  against  its  valid- 
ity. It  is  certainl}'  a  most  effective  means  of  abating  a  nuisance,  rtz. , 
the  squirrels,  and  bringing  about  a  very  desirable  end.  We  regret 
exceedingly  that  we  cannot  see  our  way  clear  to  uphold  and  enforce 
such  an  important  and  original  piece  of  legislation.  Indeed,  it  would 
give  us  great  pleasure  to  see  the  power  here  assumed  applied  to  snakes, 
tarantulas,  ants,  flies,  fleas,  and  other  reptiles,  insects,  and  pests,  which 
tend  to  make  man's  life  a  burden,  and  to  have  it  exercised  and  en- 
forced in  ever}'  count}'  in  the  State.  But  we  are  unable  to  see  by  what 
right  or  authority  of  law  a  board  of  supervisors  can  impose  upon  a 
land-owner  the  burden  and  expense  of  exterminating  animals  ferm  na- 
turce  on  his  own  land,  or  elsewhere.  It  is  true,  the  Count}'  Government 
Act,  section  25,  subdivision  28,  gives  boards  of  supervisors  power  to 
"provide  for  the  destruction  of  gophers,  squirrels,  other  wild  animals, 
noxious  weeds,  and  insects  injurious  to  fruit-trees  or  vines,  or  vege- 
table or  plant  life,"  and  this  is  a  power  that  should  be  upheld  in  all 
cases,  where  the  means  emplo^'ed  are  reasonable  and  not  otherwise 
objectionable.  But  certainly  this  authority  cannot  be  so  far  extended 
as  to  require  a  land-owner,  under  a  penalty,  to  exterminate  wild  ani- 
mals of  which  he  is  not  the  owner,  and  over  which  he  cannot,  in  the 
nature  of  things,  have  an}-  control  or  dominion.  From  our  limited 
knowledge  of  the  nature  of  the  squirrel-tribe  in  this  State,  such  a  task 
would  seem  to  us  to  be  almost,  if  not  quite,  impossible. 

The  ordinance  requires  that  all  occupants  of  lands,  within  ninety  days, 
exterminate  and  destroy  the  ground-squirrels  on  their  respective  lands, 
and  thereafter  keep  said  lands  free  and  clear  therefrom.  This  might 
be  successfully  done  by  the  free  and  judicious  use  of  poison,  and  per- 
haps by  some  other  means,  on  very  small  tracts  of  land,  but  on  large 
tracts  it  would  certainly  require  eternal  vigilance,  if  it  could  be  accom- 
plished at  all,  and  if,  after  the  extermination  of  the  intruders  on  his 
own  lands,  one,  onl}'  one,  should  come  over  from  the  land  of  his  neigh- 
bor, the  ordinance  would  be  violated.  The  occupant  of  lands  border- 
ing on  another  count}',  where  no  such  regulation  prevailed,  and  the 
pesky  squirrel  was  allowed  to  propagate  and  grow  unmolested,  would 
be  in  a  most  unfortunate  condition.  Such  an  ordinance  differs  mate- 
rially from  laws  requiring  an  occupant  of  lands  to  keep  them  free  from 
noxious  weeds,  or  such  as  make  it  the  duty  of  an  owner  of  diseased 
domestic  animals  to  kill  them,  in  order  to  prevent  the  spread  of  the  dis- 
ease. These  are  matters  over  which  the  property-owner  has  control,  and 
the  requirements  are  reasonable  and  just. 

The  respondent  attempts  to  sustain  the  ordinance  by  and  under  sec- 
tion II  of  article  XI.  of  the  Constitution  of  this  State,  which  provides 
that  "  any  county,  city,  town,  or  township  may  make  and  enforce, 
within  its  limits,  all  such  local,  police,  sanitary,  and  other  regulations 


CHAP,  v.]  IN    KE   LEE    SING    ET    AL.  861 

as  are  not  in  conflict  with  tlie  general  laws."  But  the  ordhiance  is  not 
intended  to  preserve  the  peace  and  quiet  of  the  county,  or  to  prevent 
the  use  of  one's  property  to  the  injury  of  another,  or  for  the  protection 
of  the  lives,  limbs,  or  comfort  of  all  persons,  or  to  prevent  the  propaga- 
tion or  spread  of  disease,  nor  is  it  in  any  proper  sense  a  police  or 
sanitary  regulation.  What  is  meant  b}'  "  ottier  regulations,"  in  the 
section  cited,  ma}'  be  a  question,  but  it  must  certainly  be  limited  to 
objects  similar  to  those  denominated  police  and  sanitary.  If  the  Board 
of  Supervisors  had  no  authority  to  pass  such  an  ordinance,  then  no 
offence  was  connnitted  by  the  petitioner,  the  act  or  omission  on  his  part 
was  not  a  crime,  the  court  had  no  jurisdiction  to  try  or  convict  him,  and 
he  is  entitled  to  his  discharge. 

We  know  of  no  law  which  can  be  held  to  authorize  a  board  of  super- 
visors to  enact  such  an  ordinance,  and  we  are  quite  clear  that  it  cannot 
be  enforced,  for  the  reason  that  it  is  unreasonable  and  burdensome  in  the 
extreme.     Let  the  petitioner  be  discharged. 

Fox,  J.,  Sharpstein,  J.,  and  Thornton,  J.,  concurred.  Paterson, 
J.,  and  McFarland,  J.,  concurred  in  the  judgment.  ,   k 

In  re  lee   sing  et  al. 

Circuit  Court  of  the  United  States,  N.  D.  California.     1890. 

[43  Fed.  Rep.  359] 

At  Law. 

The  ordinance  under  which  the  arrest  was  made  is  as  follows. 
[See  the  note.^] 

Thos.  D.  Miorclan^  for  petitioners.  John  I.  Humphreys^  for  the 
City. 

Sawyer,  J.     The  petitioners  are  under  arrest  for  the  violation  of  Or- 

1  "  Order  No.  2190  designatino-  the  location  and  the  district  in  which  Cliinese  shall 
reside  and  carry  on  business  in  this  city  and  county. 

"  The  people  of  the  city  and  county  of  San  Francisco  do  hereby  ordain  as  follows  : 

"Section  1.  It  is  hereby  declared  to  be  unlawful  for  any  Chinese  to  locate,  reside, 
or  carry  on  business  within  the  limits  of  the  city  and  county  of  San  Francisco,  except 
in  that  district  of  said  city  and  county  hereinafter  prescribed  for  their  location. 

"  Sec.  2.  [This  section  defines  the  limits  of  the  district  appropriated  to  the  resi- 
dence of  the  Chinese.] 

"  Sec.  3.  Within  sixty  days  after  the  passage  of  this  ordinance  all  Chinese  now 
located,  residing  in  or  carrying  on  business  within  the  limits  of  said  city  and  county 
of  San  Francisco  shall  either  remove  without  the  limits  of  said  city  and  county  of  San 
Francisco  or  remove  and  locate  within  the  district  of  said  city  and  county  of  San 
Francisco  herein  provided  for  their  location. 

"  Sec.  4.  Any  Chinese,  residing,  locating,  or  carrying  on  business  within  the  limits 
of  the  city  and  county  of  San  Francisco  contrary  to  the  provisions  of  this  order  shall 
be  deemed  guilty  of  a  misdemeanor,  and  u])on  conviction  thereof  shall  be  punished  by 
imprisonment  in  the  county  jail  for  a  term  not  exceeding  six  months. 

"  Sec.  5.   It  is  hereby  made  the  duty  of  the  chief  of  police  and  of  every  member  of 


SG2  IN   KE   LEE   SING   ET  AL.  [ciIAP,  V. 

der  No.  2190,  commonly  called  the  "  Bingham  Ordinance,"  requiring  all 
Cliinese  inhabitants  to  remove  from  the  portion  of  the  city  heretofore 
occupied  by  them,  outside  the  city  and  county,  or  to  another  designated 
part  of  the  city  and  county.  .  .  .  [Then  follows  section  1  of  the  Four- 
teenth Amendment.] 

Article  6  of  the  Burlingarae  Treaty  with  China,  provides,  that  "  Chi- 
nese subjects,  visiting  or  residing  in  the  United  States,  shall  enjoy  the 
same  privileges,  immunities,  and  exemptions,  in  respect  to  travel  or 
residence,  as  may  there  be  enjoyed  by  the  citizens  or  subjects  of  the 
most  favored  nation."     16  St.  740. 

Section  1977  of  the  Revised  Statutes  of  the  United  States  provides  as 
follows :  — 

"All  persons  within  the  jurisdiction  of  the  United  States  shall  have 
the  same  right  in  every  State  and  Territory  to  make  and  enforce  con- 
tracts, to  sue,  be  parties,  give  evidence,  and  to  the  full  and  equal 
benefit  of  all  laws  and  proceedings  for  the  securitj-  of  persons  and 
property  as  is  enjoyed  by  white  citizens,  and  shall  be  subject  to  like 
punishment,  pains,  penalties,  taxes,  licenses,  and  exactions  of  every 
kind,  and  to  no  other."  .  .  .  [Then  follows  Art.  6,  cl.  2,  of  the  Consti- 
tution of  the  United  States.] 

The  discrimination  against  Chinese,  and  the  gross  inequality  of  the 
operation  of  this  ordinance  upon  Chinese,  as  compared  with  others,  in 
violation  of  the  constitutional,  treaty,  and  statutory  provisions  cited, 
are  so  manifest  upon  its  face,  that  I  am  unable  to  comprehend  how  this 
discrimination  and  inequalit}-  of  operation,  and  the  consequent  violation 
of  the  express  provisions  of  the  Constitution,  treaties,  and  statutes  of 
the  United  States,  can  fail  to  be  apparent  to  the  mind  of  every  intelligent 
person,  be  he  law3-er  or  la3-man. 

The  ordinance  is  not  aimed  at  any  particular  vice,  or  any  particular 
unwholesome  or  immoral  occupation,  or  practice,  but  it  declares  it  "to 
be  unlaw^ful  for  any  Chinese  to  locate,  reside,  or  carry  on  business 
within  the  limits  of  the  city  and  county  of  San  Francisco,  except  in 
that  district  of  said  cit}'  and  count}'  hereinafter  provided  for  then' 
location." 

It  further  provides  that  "  within  sixty  days  after  the  passage  of  this 
ordinance  all  Chinese  now  located,  residing  or  carrying  on  business 
within  the  limits  of  said  cit}'  and  count}'  of  San  Francisco,  shall  either 
rem.ove  without  the  limits  of  said  city  and  county  of  San  Francisco,  or 
remove  and  locate  within  the  district  of  the  city  and  count}'  of  San 
Francisco,  herein  provided  for  their  location."  And  again,  section  4 
provides  that  "any  Chinese  residing,  locating,  or  carrying  on  business 

the  police  department  of  said  city  and  county  of  San  Francisco  to  strictly  enforce  the 
provisions  of  this  order. 

"And  the  clerk  is  herehy  directed  to  advertise  this  order  as  required  by  law- 

"  In  Board  of  Supervisors,  San  Francisco,  February  1 7,  1 890. 

"Passed  for  printing  by  the  following  vote  :  Ayes  —  Supervisors  Bingham,  Wright, 
Boyd,  Pescia,  Bush,  EUert,  "Wheelan,  Becker,  Pilster,  Kingwell,  Barry,  Noble." 


CHAP,  v.]  IN    RE    LEE   SING    ET   AL.  863 

within  the  limits  of  the  cit}'  and  county,  contrary  to  the  provisions  of 
this  order,  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof,  shall  be  punished  by  imprisonment  in  the  county  jail  for  a 
term  not  exceeding  six  months.  Upon  what  other  people  are  these 
requirements,  disabilities,  and  punishments  imposed?     Upon  none. 

The  obvious  purpose  of  this  order,  is,  to  forcibly  drive  out  a  whole 
community  of  twenty-odd  thousand  people,  old  and  young,  male  and 
female,  citizens  of  the  United  States,  born  on  the  soil,  and  foreigners  of 
the  Chinese  race,  moral  and  immoral,  good,  bad,  and  indifferent,  and 
without  respect  to  circumstances  or  conditions,  from  a  whole  section  of 
the  city  which  they  have  inhabited,  and  in  which  they  have  carried  on 
all  kinds  of  business  appropriate  to  a  city,  mercantile,  manufacturing, 
and  otherwise,  for  more  than  forty  years.  Many  of  them  were  born  there, 
in  their  own  houses,  and  are  citizens  of  the  United  States,  entitled  to  all 
the  rights  and  privileges  under  the  Constitution  and  laws  of  the  United 
States,  that  are  lawfully  enjoyed  by  any  other  citizen  of  the  United 
States.  They  all,  without  distinction  or  exception,  are  to  leave  their 
homes  and  property,  occupied  for  nearly  half  a  century,  and  go.  either 
out  of  the  city  and  county,  or  to  a  section  with  prescribed  limits,  within 
the  city  and  county,  not  owned  by  them,  or  by  the  city.  This,  besides 
being  discriminating,  against  the  Chinese,  and  unequal  in  its  operation 
as  between  them  and  all  others,  is  simplj'  an  arbitrary  confiscation  of 
their  homes  and  property,  a  depriving  them  of  it,  without  due  process 
or  any  process  of  law.  And  what  little  there  would  be  left  after  aban- 
doning their  homes,  and  various  places  of  business  would  again  be  con- 
fiscated in  compulsorily  buying  lands  in  the  only  place  assigned  to 
them,  and  which  they  do  not  own,  upon  such  exorbitant  terms  as  the 
present  owners  with  the  advantage  given  them  would  certainlj-  impose. 
Jt  must  be  that  or  nothing.  There  would  be  no  room  for.  freedom  of 
action,  in  buying  again.  Tliey  would  be  compelled  to  take  any  lands, 
upon  an}'  terms,  arbitrarily  imposed,  or  get  outside  the  citj'  and  county 
of  San  Francisco. 

That  this  ordinance  is  a  direct  violation  of  not  onlj-  the  express  pro- 
visions of  the  Constitution  of  the  United  States,  in  several  particulars, 
but  also  of  the  express  provisions  of  our  several  ti^eaties  with  China,  and 
of  the  statutes  of  the  United  States,  is  so  obvious,  that  I  shall  not  waste 
more  time,  or  words  in  discussing  the  matter.  To  any  reasonably  intel- 
ligent and  well-balanced  mind,  discussion  or  argument  would  be  wholly 
unnecessarj'  and  superfluous.  To  those  minds,  which  are  so  constituted, 
that  the  invalidity  of  this  ordinance  is  not  apparent  upon  inspection, 
and  comparison  with  the  provisions  of  the  Constitution,  treaties,  and 
laws  cited,  discussion  or  argument  would  be  useless.  The  authority  to 
pass  this  order  is  not  within  any  legitimate  police  power  of  tlie  State. 
See  la  re  Tie  Loy,  11  Sawy.  472,  26  Fed.  Rep.  61 1 ;  In  re  Ah  Fong, 
3  Saw}'.  144  ;  Chij  Lting  v.  Freeman,  92  U.  S.  275  ;  In  re  Quong 
Woo,  7  Sawy.  531,  13  Fed.  Rep.  229  ;  Yick  Wo  v.  Hopkins,  118  U.  8. 
356,  6  Sup.  Ct.  Rep.  1064  ;  Ho  Ah  Koio  v.  JSfuman,  5  Sawy.  552. 


864  MAYOR,   ETC.   OF   BALTIMORE   V.   RADECKE.  [CIIAP,  V. 

Let  the  order  be  adjudged  to  be  void,  as  being  in  direct  conflict  with 
the  Constitution,  treaties,  and  statutes,  of  the  United  States,  and  let  the 
petitioners  be  discharged.^ 


t^iUxa.  f^tuitu         MAYOR,  etc.,  of  BALTIMORE  v.  RADECKE. 
<lAyi\jC  yvC4.  '^u.^^^^'  Maryland  Court  of  Appeals.     1878. 

^JjUi  ^ylurfi  ^^  ^   C^tu/  [49  Md.  217.] 

i^         Appeal  from  the  Circuit  Court  of  Baltimore  City.    The  case  is  stated 
1 '(-       -   tLi    ^'■^  ^      opuiion  oi  the  court. 

-^ '^^^  The  cause  was  argued  before  Bartol,  C.  J.,  Bowie,  Miller,  and 

Uirif-^^^'   Alvey,  J  J.      Thomas  W.  Mall  and  James  L.  McLane,  for  the  appel- 
^  lant.     E.  Duffy  and  S.  Teackle  JVallis,  for  the  appellee. 

Miller,  J.,  delivered  the  opinion  of  the  court.     The  appellee  is  ten- 

^lUyua-i^^ ^^-^^  and  occupant  of  certain  premises  situated  on  McClellan's  Alley,  in 

nrtAci^  tt.^  a  central  business  locality  in  the  city  of  Baltimore,  where  he  and  his 

I  I)    a  tu^  father  before  him  had  carried  on  the  business  of  carpentering  and  box- 

/?  making  since  the  j'ear  1853.     In  1866  he  applied  to  the  Mayor  and 

ru^<<  '^         Cit^-  Council  for  permission,  which  was  granted,  to  erect  and  use  on 

iuoaA  °-^^  these  premises  and  in  the  carrying  on  of  his  business,  a  steam-engine. 

-^  ■  The  resolution  granting  this  permit  contained  a  provision,  in  conformit}' 

^i/  y    to  a  city  ordinance  on  the  subject,  that  the  engine  was  '^  to  be  removed 

^^  y\^     after  six  months'  notice  to  that  efl'ect  from  the  IMavor."    Upon  the  pas- 

tttM  ^      sage  of  this  resolution  he  erected  and  has  ever  since  used  a  steam- 

T  engine  in  his  said  business,  but  some  time  in  the  year  1873  the  Mayor 

gave  him  notice  to  remove  it,  which  he  refused  to  do.  The_city,  then, 
C/l(.'vv*^<t  after  the  exjjiration  of  the  six  months  instituted  a  suit  before  a  justice 
x^  cuArC't<.  ^^  the  peace,  for  the  penalty  of  non-removal  provided  in  the  ordinance, 
Cjy  and  the  appellee  thereupon  filed  the  bill  in  this  case  for  an  injunction  to 
:  (MY  ■'  "  restrain  the  prosecution  of  that  action  and  others  which  the  city  threat- 
^  "^  /^-  ened  to  bring  from  day  to  day  in  order  to  enforce  the  removal  of  thi_s 
g^^^  engine.      The  court  below  on  final  hearing  ordered  the  injunction  to  be 

^•^  .  issued  as  prayed  and  made  it  |)erpetual.     From  this  order  the  INIavor 

f      ^  /  and  City  Council  have  appealed. 

:uAAj\r  LU^  r^^^^  ^j^.^,  legis]f^^on  on  tlie  subject,  in  force  at  the  time  this  permit 
ititiJj^  "^  was  granted  to  the  appellee,  was  first,  the  56tli  section  of  Oi'dinance 
^  No.  33,  approved  June  5,  1858,  by  which  it  was  provided  under  pre- 
scribed penalties  that  no  person  should  "  erect,  build,  or  have  put  up 
any  steam  saw-mill  or  machinery,  or  any  steam-engine  for  any  purpose 
j,t  f-uA^,afV^  whatever,  or  planing  machine,  or  machinery  within  the  limits  of  the 
J  Jji-Jj.,  city,  without  first  obtaining  the  sanction  of  the  Mayor  and  City  Coun- 
^^  oil,"  and  secondly,  part  of  the  5th  section  of  Ordinance  No.  78,  approved 

*^  ^'-^         June  9,  1864,  which  provided  that  "  all  permits  granted  for  steam- 

i/tlu^tcW    "J* 


/vXaL/x-<N^   ./^L*,^..e>tv.  o^^^fJVL    ,^rv_^uXt<    CU.c^^^    V^^-       /<^<-*-^<^  <^    JLx.ocr 

CilAP.  v.]             MAYOR,    ETC.    OF   BALTIMORE   V.    RADECKE.                        865  -*^  >>.AX>|>i 

boilers  and  steam  eus^^ss  ^"^^  boilers  may  be  revoked,  and  the  same  .^^;^ ^ 

shall  be  removed,  after  six  months'  notice  from  the  Mayor,  and  any  one  i/,,^ 
receivin*;  such  notice,  who  shall  refuse  or  neglect  to  conform  to  the  x^C^^^ 

quircnients  of  the  same  shall  pay  a  tine  not  exceeding  one  hundred  ."T^-ic^x    <^'^ 

dollars,  and  a  further  line  not  exceeding  fifty  dollars,  for  every  day  .   ^^.^xXj.-^ 
such  refusal  or  neglect  shall  continue  after  the  first."     It  is  this  last        '^_^ 

l)rovision  which  the  present  ease  requires  us  more  especially  to  con-  C<X^'^  ' 
sider,  not  only  because  the  bill  assails  its  legality  and  validity,  but 

because  the  injunction  complained  of  restrains  the  ijrosecution  of  suits  j)  ^Axy^-^-^ 

for  the  penalties  which  it  imposes  for  non-compliance  with  the  notice  "^  I 

and  order  to  remove  oiven  by  the  Mayor.     It  is  obvious  that  those  who  TR^   imAA 

enacted  this  provision  did  not  suppose  it  was  an  exercise  of  the  power  >fN,^"tui-*^ 

"  to  prevent  and  remove  nuisance,"  for  it  \vould  be  a  curious  anomaly  ,           /     . 
in  municipal  legislation  on  that  subject,  as  well  as  a  novel  mode  of   /**-^    / 

removing  a  nuisance,  to  pass  an  ordinance  allowing  a  nuisance  to  re-  Ao^'^^'^ 

main  for  six  months  after  the  Mayor  had  determined  it  to  be  such,  Jt^'^^f^ 

before  any  steps  could  be  taken  to  enforce  its  removal.     But  further  /i/iinP^^^^ 

than  this,  a  stationary  steam-engine  is  not  in  itself  a  nuisance  even  if  -fJ ArJJb^ 

greeted  and  used  in  the  midst  of  a  populous  city,  unless  it  interferes  ^•-^''-^'^^ 

with  the  safety  or  convenience  of  the  public  in  the  use  of  the  streets.  /<J.c<.<»i<  /^ 

There  is  no  proof  in  this  record  of  any  such  interference,  or  even  that  Aa.I<^^-^ 

this  w-as  the  oround  of  the  Mavor's  action  in  giving  the  notice.     Nor  ^ 

was  this  engine  used  in  connection  with  any  trade  or  occupation  which  Ayr  ^^^ 

the  law  pronounces  offensive  or  noxious.    The  business  of  carpentering  6fa-c<^>7^=»^* 

and  box-making  is  neitlier  offensive  to  the  senses  nor  deleterious  to  ^     Qotu^ 

health.     In  fact,  the  only  complaints  made  against  the  enoine  are  its  "^     (j 

liability,  in  common  with  all  other  steam  boilers,  to  explode,  and  that  'tuAJL  S^^'^ 

it  is  nsed  in  a  business  in  which  combustible  materials  are  necessarily  ^  ^^^^^  tfcj 

^      brought  in  dangerous  proximity  to  the  fire  of  its  boiler,  and  it  therefore  A              77 

'^     subjects  buildinsfs  and  merchandise  in  that  vicinitv  to  increased  danger  yj^^-^^^^^^^^ 

from  fire,  raises  the  premiums  of  insurance  thereon,   and  excites  the  Cti^  /tV^ 

fears  of  neighboring  ownei;s  for  the  safety  and  security  of  their  prop-  ^               -j^ 
erty,  but  neither  one  nor  all  of  these  circumstances  combined,  make  it  a 

nuisance.     Rhodes  v.  Dunbar^  bl  Penn.  State  Rep.  274.  /Cite/)-  ^^ 

Rut  the  legislature  has  granted  ample  power  of  legislation  upon  the  a          /  tz, 

subject  of  the  erection  and  use  of  steam-engines  within  the  city  limits,  "^w^ 

to  the  Mayor  and  City  Council  of  Baltimore,  independent  of  the  power  Jy  ^  jt<Aj^ 

"  to  prevent  and  remove  nuisances."     They  are  clothed  with  the  power  -    ■  -  ^ 

to  pass  ordinances  "  for  the  prevention  and  extinguishment  of  fires,"  -^    ^j 

for  '•'•  securing  persons  and  property  from  danger  or  destruction,  and  fj^  ^^{M'-^ 


lor  promoting  the  great  interests  and  insuring  the  good  government  of  ^    r 
the  city,"  and  '-^  to  pass  all  ordinances  necessary  to  give  effect  and   *'y*^^ 
operation  to  all  the  powers  vested  in  the  corporation  of  the  city."     It  yj/uU-  j  ^^^ 

has  been  well  said  in  reference  to  such  general  grants  of  power  that  aS 1     /      7«^ 

to  the  degree  of  necessity  for  municipal  legislation  on  the  subjects  thus    /i- '    ^ 
committed  to  their  charge,  the  Mayor  and  City  Council  are  the  exclusive  /^pf^  (M-  ^ 
judges,  while  the  selection  of  the  means  and  manner  (contributory  to         /       /» -pi 
VOL.  I.  — 55  '^^^'^f -^Jv-' 


866  •  MAYOR,   ETC.    OF   BALTIMOKE   V.    RADECKE.  [CHAP.  V. 

the  end)  of  exercising  the  powers  which  Ihcy  may  deem  requisite  to  the 
accom|)lishment  of  the  ol)jccts  of  whicli  tlie\-  are  made  the  guardians,  is 
committed  to  their  sound  discretion.     Harrison  v.  Jlaijor,  &c.,  1  Gill, 
204.    This  discretion  is  very  broad,  but  it  is  not  absolutely  and  in  all  cases 
beyond  Judicial  control.     Modern  decisions  in  other  States  have  in  some 
instances  extended  the  control  of  the  courts  over  municipal  ordinances 
upon  the  ground  of  their  unreasonableness,  further  perhaps  than  the  ad- 
judications in  this  State  would  justify  us  in  going.     The  cases  on  this  sub- 
ject and  the  conclusions  to  be  drawn  from  them  are  well  stated  by  Judge 
Dillon  in  his  admirable  work  on  Municipal  Corporations,  in  sections 
253  to  260.      They  will  also  be  found  collected  in  Wood  on  Nuisances, 
774,  note  1.    While  we  may  not  be  willing  to  adopt  and  follow  many  of 
those  cases,  and  while  we  hold  that  this  power  of  control  by  the  courts 
is  one  to  be  most  cautiously  exercised,  we  are  yet  of  opinion  there 
may  be  a  case  in  which  an  ordinance  passed  under  grants  of  power  like 
those  we  have  cited,  is  so  clearly  unreasonable,  so  arbitrary,  oppressive 
or  partial,  as  to  raise  the  presumption  that  the  legislature  never  intended 
to  confer  the  power  to  pass  it,  and  to  justify  the  courts  in  interfering  and 
setting  it  aside  as  a  plain  abuse  of  authority.     In  applying  the  doctrine' 
of  judicial  control  to  this  extent,  we  contravene  no  decisions  in  our  own 
State  and  impose  no  unnecessary  restraints  upon  the  action  of  muni- 
cipal bodies.     The  inquiry  then  arises  is  the  ordinance  in  question  such 
as  we  have  described  ?      To  answer  this  question  it  is  necessary  to  con- 
sider briefly  u[)on  what  it  operates  and  what  mischiefs  or  wrongs  it  is 
capable  of  inflicting.     It  is  matter  of  common  knowledge  as  well  as 
of  proof  in  this  case,  that  the  use  of  steam-engines  is  absolutely  neces- 
.  sary  for  the  successful  prosecution  of  nearly  all  the  various  manufactur- 
i ng,  commercial,  industrial,  and  business  enteri^rises  which  are  essential 
to  the  prosperity  of  large  cities.    Great  numbers  of  them  are  in  constant 
use  in  the  city  of  Baltimore  for  purposes  so  varied  and  numerous  as  to 
embarrass  description,  and  they  are  to  be  found  in  every  business  locality 
and  in  all  sections  of  the  town"     In  fact,  it  may  be  safely  affirmed 
that  their  use  could  not  be  prohibited  or  discontinued  without  the  most 
serious  impairment,  if  not  destruction,  of  the  prosperity  and  growth  of 
the  city.     Now  it  is  with  these  powerful  and  dangerous  but  most  im- 
portant and  valuable  aids  to  human  industry,  that  this  ordinance  deals, 
and  what  does  it  do?      It  does  not  i)rofess  to  prescribe  regulations  for 
their  construction,  location,  or  use,  nor  require  such  precautions  and 
safeguards  to  be  provided  by  those  who  own  and  use  them  as  are  best 
calculated  to  render  them  less  dangerous  to  life  and  property,  nor  does 
it  restrain  their  use  in  box-factories  and  other  similar  establishments 
within  certain  defined  limits,  nor  in  any  other  way  attempt  to  promote 
their  safety  and  security  without  destroying  their  usefulness.     But  it 
commits  to  the  unrestrained  will  of  a  single  public  officer  the  powejMp 
notifS~every  person  who  now  employs  a^^team-engine  injhe  proseciitio n 
oflvny  business  in  the  city  of  Baltimore  to  cease  to  do  s^,  and  by  pro- 
viding compulsory  fines  foFevery  day's  disobedience  of  suchjiotice  and 


CHAP,  v.]  MAYOR,    ETC.    OF   BALTIMORE   V.    RADECKE.  867 

order  of  removal,  renders  bis  power  over  the  use  of  steam  in  that  cUy 
practically  absolute,  so  that  lie  may  proliibit  its  use  aIto<>ctlicr.  Biit  if 
he  should  not  choose  to  do  this,  but  only  to  act  in  particular  cases, 
there  is  nothing  in  the  ordinance  to  guide  or  control  his  action.  It  lays 
down  no  rules  bv  which  its  in^partial  execution  can  be  secured  or  par- 
tiality and  op|)ression  prevented.  It  is  clear  that  giving  and  enforcing 
tiiese  notices  may,  and  quite  likeh'  will,  bring  ruin  to  the  business  of 
those  against  whom  they  are  directed,  while  others  from  whom  they  are 
withhehl  may  be  actually  benefited  b}-  what  is  thus  done  to  their  neigh- 
bors, and  when  we  remember  that  this  action  or  non-action  may  proceed 
from  enmity  or  prejudice,  from  partisan  zeal  or  animosity,  from  favor- 
i Lism  and  other  improper  intluences  and  motives,  easy  of  concealm e n t 
and  dirticult  to  be  detected  and  ex|josed,  it  becomes  unnecessary  to 
suggest  or  to  comment  upon  the  injustice  capable  of  being  wrought 
u nder  cover  of  such  a  power,  for  that  becomes  apparent  to  every  on e 
who  gives  to  the  subject  a  moment's  consideration.  In  fact,  an  ordinance 
whicli  clothes  a  single  individual  with  such  power  hardly  falls  within 
the  domain  of  law\  and  w^e  are  constrained  to  pronounce  it  nioperative 
and  void.  Resting  our  decision  as  to  the  invalidity  of  this  ordinance  on 
this  ground,  we  shall  not  consider  the  question  whether  it  is  also  void 
as  an  unauthorized  delegation  of  a  public  power  or  trust.  In  the  view 
we  have  taken  of  the  case,  it  becomes  unnecessary  to  express  anj-  opin- 
ion upon  that  question.  It  mu:?t  also  be  observed  that  what  we  have 
declared  void  is  only  that  part  of  the  ordinance  of  186-1:,  w^iich  gives  to 
the  Mayor  the  power  to  revoke  i)crmits  for  steam  engines  and  boilers, 
and  we  are  not  to  be  understood  as  expressing  any  disapproval  of  the 
section  of  the  ordinance  of  1858,  which  requires  a  permit  from  the 
Mayor  and  City  Council  for  the  erection  of  all  such  engines  within 
the  city  limits.  The  Act  of  1872,  ch.  153,  which  was  referred  to  by 
the  appellant's  counsel  as  containing  a  ratification  and  approval  by  the 
legislature  of  both  these  ordinances,  contains  no  reference  to  the  ordi- 
nance of  1864.  The  section  of  that  Act  which  is  relied  on  for  this  rati- 
fication and  approval  simpl}-  provides  that  "  nothing  in  this  Act  shall 
conflict  with  the  ordinance  of  the  Mayor  and  City  Council  of  Baltimore, 
which  requires  their  permission  for  the  erection  of  steam-boilers  in  that 
city."  This  in  plain  terms  refers  exclusivel}'  to  the  ordinance  of  1858, 
and  we  b}'  no  means  affirm  that  it  constitutes  a  legislative  ratification 
and  approval  even  of  that  ordinance. 

As  to  the  question  of  jurisdiction  we  have  no  doubt.  ...  It  follows 
that  the  decree  appealed  from  must  be  affirmed. 

Decree  nffirmed.H — — 

1  See  note  at  pp.  672-673.  tri  fH'  ^ .  W 

In  State  v.  Yopp,  97  N.  C.  477,481  (1887),  the  court  (Merrimox,  J.)  said  :  "In  the      \      '       '  ^ 
case  before  u.s,  the  statute  (Pr.  Acts,  188.5,  ch.  14)  forbids  every  p.er.son  'to  u.se  upop    fL^^fU^'^l/ 
the  road  of  said  company  a  bicvcle,  or  tricycle,  or  other  non-horse  vehicle,  withont  tlie  , 

express  permission  of  the  superintendent  of  said  road.'  &c.     The  purpose  of  this  statu-  "  ^^^-^X-  '^■^  '^^ 
tory  provision  is  not  to  destroy  the  defendant's  property.  —  his  bicycle.  —  or  to  deprive         .  / 


xlvWk  «. 


-Cfc^i-C 


(f^^^^^^     868  MAYOR,    ETC.    OF   BALTIMORE   V.   RADECKE 

liim  of  tlie  nse  of  it.  in  a  w:vv  not  iiijnripus  to  otliers.  but  to  prevent  liim  from  using  it 
^l\.  O^U^-    on  a  particular  road  —  that  mentioned  — at  a  particular  time  <ir  season,  when  it  would, 

by  reason  of  its  yieculiar  shape,  and  the  unusual  manner  of  using  it  as  a  means  of 
//i.  ^If  locomotion,  prove  iniurious  to  others.  —  particularly  women  and  cliildren.  constantly 

,  .  <       passing  and  repassing  in  great  numbers  over  the  particular  road  mentioned,  in  carriages 

C^   '^yVi'^'i^'^ a,m\  other  ordinary  vehicles  drawn  by  borses.     The  evidence  tended  strongly  to  sbow, 

that  the  use  of  the  bicycle  ou  the  road  materially  interfered  with  the  exercise  of  the 


l^UiJ^' 


jtuUr 


rights  and  safety  of  others  in  the  lawful  use  of  their  carriages  and  horses  in  passing 

^  4-  A^a,  over  tbe  road.     In  repeated  instances  the  horses  became  frightened  at  them,  and  car- 

^       //     riages  were  thrown  into  the  ditches  along  the  side  of  the  road._  It  was  not  uncommon 

r^  "thi  U^^   ^°'"  ''"I'ses  to  become  frightened  at  them,  and  become  unruly,  if  the  evidence  is  to  be 

I        p     _,         believed. 

^l'fJ3J'^^  "  The  statute  did  not  deprive  tbe  defendant  of  the  use  of  his  property,  —  he  might 

J    A.        have  gone  another  way^ — he  might  have  gone  at  an  o])portune  time,  with  the  express 

L^   /fi^-vi^M    permission  of  the  superintendent  of  the  road.     In  any  case,  he  had  no  right  to  go,  using 

his  bicycle,  at  the  peril  of  other  people,  he  giving  rise  to  such  peril.     Tbe  statute  did 

not,  therefore,  in  any  just  sense,  destroy  his  property,  as  contended,  or  deprive  him  of 

J  '        jf—      the  proper  and  reasonable  use  of  it;  nor  was  such  its  purpose.     Its  purpose  was  lawful, 

0^*^-^  and  in  our  judgment,  it  does  not  provide  an  unreasonable  police  regulation,  —  certainly 

/-jV  ^j/^         Dot  one  so  unreasonable  as  to  warrant  us  in  declaring  it  void.     Such  statutes  are  valid, 

unless  the  purpose,  or  necessary  effect  is,  not  to  regulate  the  use  of  property,  but  to 

iil/li\i   .destroy  it.  .  .  . 

"  It  is  further  objected,  that  the  statute  leaves  it  to  the  arbitrary  discretion  of  the 
superintendent  of  the  road  named  to  allow  or  disallow  persons  to  use  '  a  bicycle,  or  tri- 
'  <2/ii>r/^lii'tV  '"'i'^'^^'  ^^  other  non-horse  vehicle '  on  it.     This  is  a  misap]>rehension  of  the  true  import 
g  I    of  the  provision  cited.     The  discretion  vested  in  the  surieriutendeut  is  not  arbitrary. 

^  "W.   Uyd/^     He  is  made  the  agent  of  the  law,  as  well  as  superintendent,  and  he  is  bound  to  exercjse 
,j_  the  discretion  vested  in  him  honestly,  fairlv.  reasonably,  and  witliout  prejudice  or  par- 

-^'^  '^     '^       tiality.  for  tl)e  just  purpose  oi'  ellec'tuating  the  iiiteiitioii  of  the  statute.     If  there  be 
.  '   ,  *  i^  times,  or  seasons,  or  occasions,  when  persons  wisliiug  to  use  bicycles  or  other  like  vehi- 

cles embraced  by  the  prohibitory  clause  of  the  statute  in  question,  it  is  his  plain  duty  to 
X/^tMl   p^^'  allow  them  to  do  so  at  such  times      The  authority  is  not  his ;  he  is  simply  made  the 
li,  agent  of  the  law  for  a  lawful  puriiose,  and  he  is  amenalde  as  such  for  any  prostitution 

u.„^ iA. ,  LAjuL.     of  the  power  so  vested  in  him,  and  the  creation  of  the  discret i on  implies  that  there  may 
f  p  be  occasions,  or  times,  or  seasons,  when  bicycles  may  be  used  on  the  road. 

•'^^  "  '  It  not  infrequently  happens,  that  statutes  require  particular  things  to  be  done,  or 

y  not  to  be  done,  that  must  be  maile  to  depend  ujion  the  judgment  —  discretion  —  of  a 

designated  agent  or  commissioner,  or  otticer,  and  the  discretion  in  such  cases  is  not 
arbitrary. — jt  is  lawful,  and  must  be  lawfully  exercised.'  .  .  . 
yj  "  The  learned  counsel  for  the  appellant  directed  our  attention  to  the  case  of  Yick         \ 

/aa/jI^  ^^'^  ^-  Uf>pkins,  118  U.  S.  356.     That  case,  in  our  judgment,  has  no  application  here.     /V 

^'he  court  declared  a  city  ordinance  void;  upon  tlie  ground  that  its  manifest  purpose^^y 

Aij/\i/\ltA)><>^  was  not  a  just  and  reasonable  regulation,  but  unlawful,  and  the  discretionary  powers 

,  conferred  upon  certain  autiiorities  of  the  city  were  purely  arbitrary  —  intentionally  so 

;»  oi  {jUa.         — and  therefore  unlawful  and  void.     And  the  same  may  be  said  of  Maijor  and  C.  of 

0  Baltimore  v.  Radecke,  49  Md.  217,  cited  in  the  case  above  mentioned.     In  our  case,  the 

tuXi  _  purpose  of  tbe  .statute  is  obviously  a  lawful  one,  —  a  proper  regulation  of  the  use  of 

i_  (_     property,  —  and  the  designation  of  the  agent,  and  the  discretionary  power  conferred 

lA  (T*-*^  ^    upon  him,  is  for  the  lawful  purpose  of  effectuating  the  jiist  intent  of  the  statute,  and 

A    /  J--.  .^    1t^  is  amenable,  as  we  have  indicated  above."     Compare  Twilley  v.  Perkins,  26  Atl. 

^•^^P'^^^^Hep   286(Md.  1893).  — Ed. 


</ 


CHAP,  v.]  STATE   V.    DERING.  869 


Supreme  Court  of  Wisconsin.     1893.     \|^>-  <>^^  tier^^vi-y  ^ 

[84    H';s.  585]  -   cictj    qV-  C7>-aCUAXA'^^ 

Certiorari  to  a  court  commissioner  of  Columbia  Count}'.  ^  /pua.is/(( 

This  is  a  proceeding  by  certiorari  to  review  the  decision  of  C.  L.     ^  / 

Bering,  court  commissioner  of  Columbia  County,  in  the  matter  of  bis   /    *^ 
refusal  to  discharge  the  petitionei',  Joseph  Garrabad,  from  custody,  and   ^C^t^^^*-*-  ^ 
remaiiding  him  to  the  iin|)risonment  of  which  he  com|,)lains.     It  appears   (>/  -/(^  mM 
from  the  return  of  the  sheriff  of  Columbia  County  to  the  writ  of  habeas    07       .  . 
coi'pus  issued  by  tlie  commissioner,  that  on  the  27th  day  of  February,       ,  /' 

1893,  the  petitioner  was  placed  in  his  custody,  and  was  held  therein,  ^u^Ua^*-'^  v\ 
under  and  b}'  virtue  of  an  execution  or  so-called  "  commitment,"  issued  ijc^tiUf  ^ 
by  V.  Helman,  a  justice  of  the  peace  of  the  city  of  Portage  in  said  LXiJiuXt.'^ 
county,  reciting  that  the  city  of  Portage  had  recovered  a  judgment  be-  j,  (f -,  ' 
fore  said  justice  against  the  petitioner  for  the  sum  of  So,  together  with  ''^^^'^  ^ 
$13.85  costs  of  suit,  for  the  violation  of  au  ordinance  of  said  cit}',  to  ryutOa-^-^^J 
wit.  No.  124,  entitled  "An  Ordinance  to  regulate  Street  Parades  and,  nthMA'^OMt* 
insure  Public  Safety,"  and  commanding  the  sheriff  or  any  constable  of  _  iT  jtJj^ 
the  county  to  levj'  the  same  on  the  goods  and  chattels  of  the  said  peti-    ^  "  ,, 

tioner  except  such  as  the  law  exempts,  and  in  default  thereof  to  take  A^^^-^  *\^  ^ 
his  body  and  him  convey  and  deliver  to  the  keeper  of  the  common  jail  of  MctM^^  'T 
Columbia  Count}*,  to  be  there  kept  in  custody  for  the  term  of  twenty  '^^y.  ojjuiM  A 
days,  unless  said  judgment  with  costs  was  sooner  paid  or  he  should  be  y  -  ^  J  /^/n, 
discharged  by  due  course  of  law^  '^(4' 

The  ordinance  in  question  provides  that  "it  shall  be  unlawful  for  an}-  ^Jjt^cu^oJ.  It 
person  or  persons,  society,  association,  or  organization,  under  whatso-  ^i^^/^lr^  i 
ever  name,  to  march  or  parade  over  or  upon  "  certain  streets  (therein  / 

named)  in  the  city  of  Portage,  "  shouting,  singing,  or  beating  drums  or  ^^ 
tambourines,  or  playing  upon  any  other  musical  instrument  or  instru-    h a/i  (^^ 
ments,  for  the  purpose  of  advertising  or  attracting  the  attention  of  the  fi^^-lyuJ.  ^H 
public,  or  to  the  disturbance  of  the  public  peace  or  quiet,  without  first       6  ^ 

having  obtained  a  permission  to  so  march  or  parade,  signed  by  the  ^C  '  , 
mayor  of  said  city.  In  case  of  illness  or  absence  of  the  mayor  or  other  f^^^  l^vrw^ 
officer  hereby  designated  of  the  city,  such  permission  may  be  granted  /'  .. 
and  signed  by  the  president  of  the  council,  city  clerk,  or  marshal,  in  the  ^  J'U^^^ 
order  named  :  provided,  that  this  section  shall  not  apply  to  funerals,  fire  ^iXA  n^^^ 
companies,  nor  regularly  organized  companies  of  the  State  militia  :  and  ,1^  ^  L^. 
])rovided,  further,  that  permission  to  march  or  parade  shall  at  no  time  U  <}  '^ 
be  refused  to  any  political  party  having  a  regular  State  organization.' 
Any  person  violating  any  of  the  provisions  of  this  ordinance  shall,  upon 
conviction  thereof,  be  fined  in  a  sum  not  less  than  two  dollars  or  more  ^ 
than  ten  dollars."  The  second  section  provided  that  the  marshal  should  ^ 
accompany  such  person  or  persons  receiving  permission  while  upon  tlie    ^  , 

portion  of  the  streets  described,  to  preserve  order,  warn  the  owners  of  //-^^wtcA^ 

'      1 .  .  ^      ^6     ^        ^  £^  i,'o^  ^^  ^^tJ  -iL^  ^f^Y  ^ 


(X  a- 


i-ttcL/LiJjiO.     4j^\-^i'^-<L^^iH      /kui.lrCtL.t^<.i  Jxci.j^u:^   ottA.<^<^i'iyX^LJ.ix:^l^  , 
^  (J        i  870   i'       .  ^       STATE   V.   DERING.  [CHAP.  V. 

^^^     ^    horses  upon  said  portions  of  said  streets,  and  to  carefully  preserve  the 

'^    public  safety  ;  and  when  such  permission  is  given  by  any  officer  other 

■U^U/iA-     tijji,^  w^Q  marshal,  that  he  should  forthwith  notify  the  marshal  of  the 

L  iL^i^i-g''''i»l'i»g  "^"  ^lie  same. 

.  j^  _  The  sheriff  further  returned  that  "the  central  part  of  the  business 
portion  of  the  city  of  Portage  is  contained  within  the  limits  defined  in 

uv-u.v^«ii\t/i.t,he  ordinance,  and  the  streets  therein  referred  to  were  narrow,  and  cross 

t  <»-{_  "fcLc      and  enter  each  other  at  various  angles,  and  there  was  a  great  deal  of 

thLOAj^         traffic  over  the  same,  and  that  the  petitioner  had  been  duly  and  lawfully 

convicted  of  a  wilful  violation  of  said  ordinance  upon  trial  dulv  and 

^^  ^^-     legally  had." 

1i_diicJruru  The  petitioner  demurred  to  the  return,  and  the  commissioner  over- 
ruled the  demurrer  and  ordered  that  he  be  remanded  to  the  custody  of 

^^J^     *    the  sheriff,  to  be  confined  in  the  county  jail  of  said  county  according  to 

vy^AA/L-      the  terms  of  said  execution. 

ijtf  <j^ab'>         ^o^'  the  relator  there  was  a  brief  In'  Rogers  &  Hall,  and  oral  argu- 

.^ .  j^Us  "lent  by  F.  W.  Hall. 

^     f  ""      PiNNEY,  J.   .   .   .  It  is  o])jected  that  the  ordinance  is  void  on  its  face 


W.  S.  Stroud,  for  the  respondent. 


>-Jt    b>  by  reason  of  its  operating  unequallj-  and  creating  an  unjust  and  illegal 

discrimination,  not  only  (1)  bv  the  express  terms  of  the  ordinance  it- 
self, but  (2)  it  is  so  framed  as  to  punish  the  petitioner  for  what  is  per- 
mitted to  others  as  la^vful,  without  any  distinction  of  circumstances, 
whereby  an  unjust  and  illeoal  discrimination  occurs  in  its  execution,  and 
which,  though  not  made  by  the  ordinance  in  express  terms,  is  made 
possible  by  it ;  (3)  in  that  it  vests  in  the  mayor,  or  other  officers  of  the 
cit\'  named  in  it,  power  to  arbitrarily  deny  persons  and  other  societies 
or  organizations  the  right  secured  by  it  to  others  to  march  and  parade 
on  the  streets  named.  The  general  subject  and  scope  of  the  ordinance 
'  flL/-A    ^•'^  marching  or  parading  by  "any  person  or  persons,  society',  associa- 

d"^  ^  tion,  or  organization"  over  the  streets  named,  "shouting,  singing,  or 

.**wtiA.^e>^>*  beating  drums  or  tambourines,  or  playing  upon  any  musical  instrument 
(^  oc^-A.  or  instruments,  for  the  purpose  of  advertising  or  attracting  the  attention 
^^j^^  tLuA.  of  the  public,  or  to  the  disturbance  of  the  public  peace  or  quiet,"  with- 
.^  ,  out  having  obtained  permission  as  prescribed  in  the  ordinance.  It  pro- 
'^(^  ,  .  vides,  among  other  things,  that  the  ordinance  shall  not  apply  to  fire 
/vwaav^aAua  companies,  nor  to  regularly  organized  companies  of  the  State  militia,  and 
(  J<ji/yjJji/2  that  permission  to  march  or  parade  shall  at  no  time  be  refused  to  any 
.  -(L  political  party  having  a  regular  State  organization.     The  permission,  it 

K.  VM>^^  ^jjj  i^g  seen,  is  required  absolutely  to  be  granted  to  political  parties 
jLifcuTv^  ^  haA'ing  a  regular  State  organization,  so  they  are  practically  excepted 
out  of  the  ordinance.  Whether  permission  shall  be  granted  to  any 
other  societ}',  civic,  religious,  or  otherwise,  depends  not  upon  the  char- 
s^OAJ^uiL.  acter  of  the  organization,  or  u|)on  the  particular  circumstances  of  the 
.  Q^;,^i^_  case,  but  upon  the  arbitrary  discretion  of  the  mavor  or  other  officers 
^  fT  ,  named  in  the  ordinance,  acting  in  his  absence.  It  is  therefore  argued 
'^        V^-  that,  as  between  different  persons,  societies,  associations,  or  organiza- 


^.CUMV 


CHM'.  v.]  STATE   V.    BERING.  871 

tioiis,  the  ordinance  operates  unequally  and  creates  unjust  and  illegal 
discriminations  by  its  express  terms,  and  makes  such  discriminations   'i ^li^J^CL^ 
not  only  possible  but  necessary  in  its  administration,  and  therefore  that       (j' 
the  ordinance  is  void  upon  common-law  principles,  as  heretofore  reco"-  -i'ti^    ^ 
nized  and  administered  in  the  courts  of  the.  countr}'. 

The  riyhts  of  persons,  societies,  and  or<janizations  to  parade  and  have  ^ 
p rocessions  on  the  streets  with  music,  banners,  songs,  and  shouting,  is 
a  well-established  right,  and,  indeed,  the  ordinance  upon  its  face  recog- 
nizes to  a  certain  extent  the  legality  of  such  processions  and  parades, 
•  and  provides  for  i)crmitting  them,  in  the  discretion  of  the  ma^or,  in  all 
cases  except  those  named,  and  as  to  tliose  the  right  is  practically"  se- 
cured. The  ordinance,  as  framed,  and  as  it  is  to  be  executed  under  the 
arbitrary  discretion  of  the  mayor  or  other  officer,  is  clearly  an  abridg- 
ment of  the  rights  of  the  people  ;  and  in  many  cases  it  iJracticuUy  i^re- 
vents  those  public  demonstrations  that  are  the  most  natural  product  of 
common  alms  and  kindred  purposes.  "  It  discourages  united  effort  to 
attract  public  attention  and  challenge  public  examination  and  criticism 
of  the  associated  purposes."  Anderson  \.  Wellington,  40  Kan.  173, 
contains  a  careful  discussion  and  examination  of  a  similar  ordinance, 
which  was  there  held  to  be  void  as  contravening  common  right.  In  In 
re  Frazee,  63  Mich.  396,  after  a  full  discussion  by  Campbell,  C.  J.,  a 
similar  ordinance  was  also  held  void,  and  tfiat  it  is  not  in  the  power  of 
the  legislature  to  deprive  any  of  the  people  of  the  enjoyment  of  equal 
privileges  under  the  law,  or  to  give  cities  an}'  tyrannical  powers  ;  that 
charters,  laws,  and  regulations,  to  be  valid,  must  be  capable  of  con- 
struction, and  must  be  construed,  in  conformit}'  to  constitutional  prin- 
ciples and  in  harmony  with  the  general  laws  of  the  land  ;  and  that  any 
by-law  which  violates  any  of  the  recognized  principles  of  lawful  and 
equal  rights  is  necessarily  void  so  far  as  it  does  so,  and  void  entirelj-  if 
it  cannot  be  reasonabh'  applied  according  to  its  terms  ;  and  no  grant  of 
absolute  discretion  to  suppress  lawful  action  can  be  sustained  at  all ; 
that  it  is  a  fundamental  condition  of  all  liberty,  and  necessary  to  civil 
society,  that  men  must  exercise  their  rights  in  harmony  with  and  yield 
to  such  restrictions  as  are  necessary  to  produce  peace  and  good  order ; 
and  it  is  not  competent  to  make  any  exceptions  for  or  against  the  so- 
called  ^'  Salvation  Army  "  because  of  its  theories  concerning  practical 
work  ;  that  in  law  it  has  the  same  right,  and  is  su1>ject  to  the  same  re- 
strictions, in  its  public  demonstrations,  as  any  secular  body  or  society 
which  uses  similar  means  for  drawing  attention  or  creating  interest. 
Hence  the  by-law  there  in  question,  because  it  suppressed  what  was  in 
general  perfectly  lawful,  and  left  the  power  of  permitting  or  restraining 
processions  and  their  courses  to  an  unlawful  official  discretion,  was  held 
void  ;  and  that  any  regulation,  to  be  valid,  must  be  Ijy  permanent  legal 
provisions,  operating  generally  and  impartially. 

The  return  of  the  sheriff  utterly  fails  to  show  of  what  specific  offence 
the  petitioner  was  convicted  ;  that  is  to  say,  in  what  particular  respect 
he  violated  the  ordinance.     We  may  infer,  however,  for  the  purpose  of 


872  STATE   V.   BERING.  [cilAl'.  V. 

argument  aud  illustration,  from  the  fact  that  the  petition  for  the  writ 
addressed  to  this  court  states  that  the  petitioner  is  a  member  of  the 
Salvation  Army,  that  he  was  convicted  of  parading  the  streets  in  that 
capacity.  It  cannot  be  maintained  that  any  person  or  persons  or  soci- 
ety have  any  riuht  for  religious  ijurposes  or  as  religious  bodies  to  use 
the  streets  for  uui'uoses  of  uublic  parade  because  the  mu-uose  in  view  is 
purely  rell^^ious  and  not  secular,  but  tlicv  certainly  have  the  same  right 
to  equal  urotection  of  the  laws  as  secular  organizations.  The  obiectious 
urged  against  this  ordinance  are,  we  think,  fatal  to  any  conviction  which 
miuht  take  place  under  it,  h}'  reason  of  its  unreasonable  and  unjust 
discriminations  and  of  the  arbitrary  iJower  conferred  upon  the  mayor  or 
other  officer  of  the  city  to  make  others  in  its  administration  and  execu- 
tion ;  so  that  it  is  impossible  to  sustain  the  conviction  in  any  asjjcct  in 
which  the  question  may  be  viewed. 

A  careful  examination  of  the  decisions  in  various  States,  and  the  con- 
siderations upon  which  they  are  founded,  is  not  material  to  the  determi- 
nation of  the  case,  for  the  whole  subject  is  governed  and  controlled  by 
the  provisions  of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  already  referred  to.  In  construing  and  applying  this 
amendment,  the  Supreme  Court  of  the  United  States  have  said  in  J^ar- 
bier  v.  Connolh/,  113  U.  S.  27,  that  it  "undoubtedly  intended  not  only 
that  there  should  be  no  arbitrary  deprivation  of  life  or  liberty,  or  arbi- 
trary spoliation  of  property,  but  that  equal  protection  and  security 
should  be  given  to  all  under  like  circumstances  in  the  enjoyment  of  their 
personal  and  civil  rights ;  that  all  persons  should  be  equally  entitled  to 
pursue  their  happiness,  and  acquire  and  enjoy  property ;  that  they 
should  have  like  access  to  the  courts  of  the  country  for  the  protection 
of  their  persons  and  property,  the  prevention  and  redress  of  wrongs, 
and  the  enforcement  of  contracts  ;  that  no  impediment  should  be  inter- 
posed to  the  pursuits  of  any  one  except  as  applied  to  the  same  pursuits 
by  others  under  like  circumstances  ;  that  no  greater  burdens  should  be 
laid  upon  one  than  are  laid  upon  others  in  the  same  calling  and  condi- 
tion. .  .  .  Class  legislation  discriminating  against  some  and  favoring 
others  is  [)rohibited,  but  legislation  which,  in  carrying  out  a  public  pur- 
pose, is  limited  in  its  application,  if  within  the  sphere  of  its  operation 
it  affects  alike  all  persons  similarly  situated,  is  not  within  the  amend- 
ment." The  entire  subject  underwent  careful  examination  in  the  case 
of  Tick  Wo  v.  HopJdns,  118  U.  S.  356,  where  the  subject  of  city  ordi- 
nances and  the  principles  regulating  their  validity  were  considered. 
The  objections  to  the  validity  of  the  ordinances  in  that  case  were,  in 
substance,  the  same  that  are  urged  in  this,  and  the  ordinances  in  ques- 
tion w-ere  held  void.  The  objections  urged  in  the  case  of  Baltimore  v. 
RadecTce,  49  Md.  217,  were  also  in  substance  the  same,  for  the  ordinance 
in  that  case  upon  its  face  committed  to  the  unrestrained  will  of  a  single 
public  officer  the  power  to  determine  the  rights  of  parties  under  it,  when 
there  was  nothing  in  the  ordinance  to  guide  or  control  his  action,  and 
it  was  held  void  because  "  it  lays  down  no  rules  by  which  its  impartial 


CHAP,  v.]  STATE   V.   BERING.  873 

execution  can  be  secured,  or  partiality  and  oppression  prevented,"  and 
that  "  when  we  remember  that  action  or  non-action  may  proceed  froiji 
enmity  or  prejudice,  from  partisan  zeal  or  animosity,  Irom  favoritism 
and  other  improper  influences  and  motives  easy  of  concealment  and  dif- 
ficult to  be  detected  and  exposed,  it  becomes  unnecessary  to  suggest  or 
to  comment  upon  the  injustice  capable  of  being  wrought  under  cover  of 
such  a  power,  for  that  becomes  apparent  to  every  one  who  gives  to  the 
subject  a  moment's  consideration.  In  fact,  an  ordinance  which  clothes 
a  single  individual  with  such  power  hardly  falls  within  the  domain  of 
law,  and  we  are  constrained  to  pronounce  it  inoperative  and  void." 
The  doctrine  of  this  case  was  approved  in  Yic/v  Wo  \.  Hopkins,  118 
U.  S.  356.  .   .   . 

Nearly  all  the  processions,  parades,  etc.,  that  ordinarily  occur  are 
excepted  from  the  ordinance  in  question,  followed  by  a  provision  that 
permission  to  march  or  parade  shall  at  no  time  "  be  refused  to  any  po- 
litical party  having  a  regular  State  organization."  [it  is  diflicult  to  see 
how  this  can  be  considered  municipal  legislation,  dictated  by  a  fair  and 
equal  mind,  which  takes  care  to  protect  and  provide  for  the  parades  and 
processions  with  trumpets,  drums,  banners,  and  all  tlie  accompaniments 
of  political  turn-outs  and  processions,  and  at  the  same  time  provides,  in 
effect,  that  the  Salvation  Army,  or  a  Sunday-school,  or  a  temperance 
organization  with  music,  banners,  and  devices,  or  a  lodge  of  Odd  Fel- 
lows or  Masons,  shall  not  in  like  manner  parade  or  march  in  procession 
on  the  streets  named  without  getting  permission  of  the  mayor,  and  that 
it  shall  rest  within  the  arbitrary,  uncontrolled  discretion  of  this  officer 
whether  they  shall  have  it  at  all.J  The  ordinance  resembles  more  nearly 
the  means  an  d  i  nstrumentalities  frequently  resorted  to  in  p  r  act  is  i  n  g 
against  and  upon  persons,  societies,  and  organizations  a  petty  tyranny, 
the  result  of  prejudice,  bigotry,  and  intolerance,  than  any  fair  or  legiti- 
matc  ])rovision  in  the  exercise  of  the  police  power  of  the  State  to  protect 
the  public  peace  and  safety.  It  is  entirely  un-American  and  in  conflict 
w i th  the  principles  of  our  institutions  and  all  modern  ideas  of  civil  lib- 
erty. It  is  susceptible  of  being  applied  to  offRnsive  and  improper  uses. 
made  subversive  of  the  rights  of  private  citizens,  and  it  interferes  with 
and  abridges  their  privileges  and  immunities,  ancf  denies  them  the  equal 
protection  of  the  laws  in  the  exercise  and  enjoyment  of  their  undoubtecl 
rights.  In  the  exercise  of  the  police  power  the  common  council  ma}', 
in  its  discretion,  regulate  the  exercise  of  such  rights  in  a  reasonable 
manner,  but  cannot  suppress  them,  directly  or  indirectl}',  by  attempting 
to  commit  the  power  of  doing  so  to  the  raa3'or  or  any  other  officer.  XilC 
discretion  with  which  the  council  is  vested  is  a  legal  discretion,  to  be 
exercised  within  the  limits  of  the  law,  and  not  a  discretion  to  transcend 
it  or  to  confer  upon  any  city  officer  an  arbitrary  authority,  making  him 
in  its  exercise  a  petty  tyrant.  Such  ordinances  or  regulations,  to  be 
valid,  must  have  an  ecjual  and  uniform  application  to  all  persons,  soci- 
eties, or  organizations  similarly  circtunstanced,  and  not  be  susceptible 
of  unjust  discriminations,  which  may  be  arbitrarily  practised  to  the  hurt, 


87-i  SINGER   V.    MARYLAND.  [CIIAP.  Y. 

prejudice,  or  nnnoYancc  of  aiiY-     An  ordinance  which  expressly  securesM 
to  poUticai  parties  havint;  State  organizations  the  absohite   right  toty 
street  parades  and  processions,  with  all  their  usual  accompaniments, a\a. 
and  denies  it  to  the  societies  and  otlier  like  organizations  already  men-  ^ 
tioned,  excei^t  by  i)ermission  of  the  mayor,  who  may  arbitrarily  refuse 
it,  is  not  valid,  and  offends  against  all  well-established  ideas  of  civil  arid 
religious  liberty.     The  people  do  not  hold  rights  as  important  and  well 
settled_as_the  right  to  assemble  and  have  i^nbUc  parades  and  processions 
with  music  and  banners  and  shouting  and  songs,  in  support  of  any  laud- 
able or  lawfuljcanse,  subject  to  the  ])ower  of  any  i)ublic  ofacer  to  inter-   ^j/*^ 
diet  or  pre\jnit  them.     Our  government  is  "a  government  of  laws  and 
not  of  men,"  and  these  principles,  well  established  by  the  courts,  bj'  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States,  have 
become  a  part  of  the  supreme  law  of  the  land,  so  that  no  officer,  body,    '      ci' 
or  lawful  authority,  can  "deny  to  anj'  person  the  equal  protection  of  the    (y 
laws."     It  is  plain  that  tlie  ordinance  in  question  is  illegal  and  void,     \\^ 
and  for  this  reason  the  order  of  the  commissioner  must  be  reversed. 

J3i/  the  Court.  —  The  order  of  the  court  commissioner  is  reversed, 
and  the  petitioner  ordered  discharged.^ 


>:, 


''^ZSJJ^M^      SINGER  ..  MARYLAND. 

■  /y  .  U  Maryland  Court  of  Appeals.     1890. 

'y^-^U.  /Maj/uM  Appeal  as  upon  writ  of  error  from  the  Criminal  Court  of  Baltimore. 
f^^Ayii  Cuc  The  case  is  stated  in  the  opinion  of  the  court. 

(/  „       The  cause   was   argued   before  Alvey,   C.  J.,   Miller,  Robinson, 

^-^''^'^■^^^  Bryan,  Fovtler,  McSherry,  and  Briscoe,  JJ.  David  Stewart,  for 
'A^vi/viM        the  appellant ;  Edgar  H.  Gans  and  William  Pinkney  Wliyte,  Attornej'- 

£11^^-^      General,  for  the  appellee. 

Robinson,  J.,  delivered  the  opinion  of  the  court. 
■^  jliXJUAAi\       rp^g  traverser  is  a  plumber  by  trade,  and  was  indicted  for  refusing  to 
AA.  UAe  comply  with  the  requirements  of  the  Act  of  188G,  c.  439,  which  pro- 

^■fliriA((  vides  that  no  person  shall  engage  in  the  business  of  plumbing  in  the 
Aj^^AJA,i^uA-  city  of  Baltimore  unless  such  person  shall  have  received  from  the  State 
,  Board  of  Commissioners  of  Practical  Plumbing  a  certificate  as  to  his 

irvwV^  (k.  competency  and  qualification.  This  Act  the  traverser  contends  is  in 
pt^'^'j^iiAJL'-'--^  violation  of  his  constitutional  rights  under  the  Fourteenth  Amendment 
'  A  CJuoU-  ^^  the  Constitution  of  the  United  States  and  of  the  Constitution  of  this 

State,  both  of  which  declare  that  no  person  shall  be  deprived  of  his  life,  J 

^  ij^i.\.A       liberty,  or  property  without  due  process  of  law.     These  constitutional  1 

nXlLii^ay^^  safeguards  have  been  so  fully  considered  and  discussed  by  the  Supreme 

L   C^niAlA^^      1  See  Youmjhlood  v.  Birm.  Co.,  95  Ala.  521 ;  see  also  ante,  p.  673,  uote.  —  Ed.  ^ 


--XtAiAJL   -  <=^A.v  c^     Aci^^aje     C<-Cu      Wx<      nUAj>>\LJ^jC.    t^JLCU^-lM^    ^u^«cw^  <>t<yj**A^ 

'       CHAP,  v.]  SINGER  V.   MARYLAND.  875    :^JL<A^(i  [^ 

Court,  cspecuilh'  since  the  adoption  of  tlie  Fourteenth  Amendment,  by  rji^t-e^  ^j 
wliich  the  restraint  ujjon  the  power  of  the  States  to  pass  laws  affecting    ^  ^  - 

personal  and  private  rights  was  made  a  part  of  the  P^ederal  Constitution,  ^^  ^"^  ^ 
that  it  can  onl3'  be  necessary  to  refer  to  the  conclusions  reached  b^'  that  -<a^u-*tcx  <> 
court  as  affecting  the  question  before  us.      Dent  v.  West  Vivyinia,  129     /jbs/x/x^nvh'  • 

/U.  S.  114  ;  Barbier  v.  Coiinollij,  113  U.  S.  27;  Muffler  v.  Kansas,  123    JL       ^    .,_. 
vjjv      U.  S.  623  ;   Soon  H'uiff  v.  Croidey,  113  U.  S.  703  ;  Powell  v.  Pennsyl-    "^  J'* 

^1^  -  \,'  va7iia,  127  U.  S.  G78.     No  one  questions  the  right  of  every  person  in    IJcCf  ^vu^^ 
y-T    this  couutry  to  follow  any  legitimate  business  or  occupation  he  may  see  _/^^   oJaou 

)^     v)  fit_    Tliis  is  a  privilege  open  alike  to  ever}-  one.     His  own  labor,  and  .  /[_ 

the  right  to  use  it  as  a  means  of  livelihood,  is  a  right  as  sacred  and  as  *^  ^^uax^za^ 
fully  protected  by  the  law  as  any  other  personal  or  private  right.  But  't^A£CLo<Ju\ 
broad  and  comprehensive  as  this  right  maybe,  it  is  subject  to  tlie  para-  A.    / 

mount  right,  inherent  in  every  government,  to  impose  such  restraint  (/ 

and  to  i)rovide  such  regulations  in  regard  to  the  pursuits  of  life  as  the  \ruh.ci.  '^^ 
public  welfare  may  reciuire.  This  paramount  right  rests  upon  the  well-  "LaA/^  ca.^^j<.o 
recognized    maxim,    Scdus  pojndi   est    suprenia   lex ;    and,    whatever     ^  . 

difficulty  there  maj'  be  in  defining  the  precise  limits  and  boundaries  b}'   /LX-i./^-'i^ 
which  the  exercise  of  this  power  is  to  be  governed,  all  agree  that  laws    n^^^^cL.  vur(^ 
and  regulations  necessary  for  the  protection  of  the  health,  morals,  and  _i.. 

safety  of  society  are  strictly  within  the  leg:itimate  exercise  of  the  police  ^VU X^^fi^^^-^^ 
power.  Powell  v.  Pennsylvania,  127  U.  S.  678  ;  Mnyler  v.  Kansas,  123  j-*vl,,«^ yuV 
U.  S.  623;  Railway  Co.  v.  Beckwith,  129  U.  S.  26.     As  to  the  com-"^  /[ 

mon  and  ordinar}"  occupations  of  life,  little  or  no  regulation  may  hQ  ^  /ri  ^ 
necessary  ;  but  if  the  occupation  or  calling  be  of  such  a  character  as  to  .  ^      i 

require  a  special  course  of  study  or  training  or  experience  to  qualify  one    ^^-^^^   y 
to  pursue  such  occupation  or  calling  with  safety  to  the  public  interests,   -/,fv\^  H^ 
no  one  questions  the  power  of  the  legislature  to  impose  such  restraints,  ^wruX*^ 

and  prescribe  such  requirements,  as  it  may  deem  proper  for  the  protec-  ^ 
tion  of  the  public  against  the  evils  resulting  from  incapacity  and  igno-  Pr^  ~U^  ^^ 
ranee  ;  and  neither  section  one  of  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  nor  article  23  of  the  Bill  of  Rights  of  the  Constitu- 
tion of  this  State,  was  designed  to  limit  or  restrain  the  exercise  of  this 
power.  It  is  in  the  exercise  of  this  power  that  no  one  is  allowed  to 
practise  law  or  medicine  or  engage  in  the  business  of  a  druggist  unless 
he  shall  have  been  found  competent,  and  qualified  in  the  mode  and  in 
the  n^anner  prescribed  by  the  statute  ;  and,  altliongh  the  business  and 
trade  of  a  plumber  may  not  require  the  same  training  and  experience 
as. some  other  pursuits  in  life,  yet  a  certain  degree  of  training  is  abso- 
lutely necessary  to  qualify  one  as  a  competent  and  skilful  workman. 
We  all  know  that  in  a  large  city  like_Bn[timore.  with  its  extensive  sys- 
tem of  drainage  and  sewerage,  the  public  health  largely  depends  upon 
the  proper  and  efficient  manner  in  which  the  plumbing  work  is  executed, 
and,  this  being  so,  the  legislature  not  only  has  the  power,  but  it  is 
eminently  wise  and  proper  that  it  should,  provide  some  mode  by 
^hich  the  qualification s  of  persons  engaged  in  that  business  shall  be 
determined. 


876  TRAGESER    V.    GRAY.  [ciIAP.  V. 

In  considering  the  power  of  the  logisUiturc  to  impose  restraints  upon 
all  persons  engaged  in  certain  pursuits;  the  Supreme  Court  say  :  "  The 
nature  and  extent  of  the  qualifications  required  must  depend  primarily 
upon  the  judgment  of  the  State  as  to  their  necessity.  If  they  are  ap- 
propriate to  the  calling  or  profession,  and  attainable  by  reasonable 
application,  no  objection  to  their  validity  can  be  raised."  Dent  v.  West 
Virginia^  129  U.  !S.  114.  The  Act  of  188G  now  before  us  ijrovidcs  in 
the  first  place  that  no  one  shall  enaa^e  in  the  business  of  ijlumbiut; 
except  those  qualified  to  w^ork  as  registered  plumbers  :  and,  furthci'. 
that  no  one  shall  be  qualified  to  work  as  a  registered  i)lumber  unless  he 
shall  have  made  a|)plication  to  and  received  from  the  State  Board  of 
Practical  Plumbers  ai)pointed  by  the  government  a  certificate  as  to  his 
competency.  These  requirements  are  ai)i)ropriate,  and  relate  to  the  busi- 
ness of  plumbing,  and  are  such  as  the  FegTslature"  deemed  neccssarvlind 
proper  foFthe  ijrotection  ofihe  health^' the  i)eoi)lc  of  Baltimore  against 
the  consequences  resulting  fi-onTlhe  woiTc  of  incompclerit  audlliexperi- 
enced  ]jlum"bersT  They  ^are~ln  themselves  fair  aiuj^Tejisonable,  and 
impose, no. restrain tmiquaUfication  which  niajr  not  be  complied  witli_by 
reasonable  training  and  experience.  Such  an  Act  is  but  the  ordinary 
exercfse  of  the  police  power  of  the  State,  and  does  not  violate  in  any 
sense  the  constitutional  rights  of  the  traverser. 

Judgment  affirmed } 

1  And  so  State  v.  Heinemann,  80  Wis.  253,  as  to  pharmacists  ;  and  People  v.  Pldp- . 
pin,  70  Mich.  6  (1888),  as  to  medical  men  and  SLxrgeous,  Campbell  and  Morse,  JJ  , 
dissenting.  Compare  State  v.  Pennoi/er,  65  N.  H.  11.3  (1889),  which  holds  unconstitu- 
tional, as  being  unequal,  an  exemption  from  the  requirements  of  such  a  statute  in 
favor  of  medical  men  who  have  resided  and  practised  their  profession  in  the  place  of 
their  present  residence  for  the  last  four  years.  A  shnilar  clause  was  sustained  in 
People  V.  Phippin,  itbi  supra,  the  court  (Long,  J.,  at  p.  24)  saying:  "This  Act  .  .  . 
makes  a  medical  qualification  the  test  of  the  right  to  practise.  The  real  test  of  the 
right  to  practise  is  that  he  shall  be  a  'graduate  of  any  legally  authorized  medical  col- 
lege in  this  State,  or  in  any  one  of  the  United  States,  or  in  any  other  country.'  And 
in  this  there  is  no  discrimination.  Now,  the  legislature  saw  fit  in  establishing  this  test, 
to  except  from  its  provisions  a  certain  class  of  physicians  and  surgeons.  In  so  doing 
it  in  effect  declared  that  the  physician  or  surgeon  who  had  actually  practised  medicine 
continuouslv  for  at  least  fiVfe-yenrs  in  this  State,  and  who  is  practising  when  this  Act 
shall  take  effect,  was  ^  well  qualified,  in  its  judgment,  to  continue  the  jn-actice  of  his 
profession  as  the  student  coming  fresh  from  the  halls  of  college  with  1h*  d-iploma  was 
to  commence  it.  The  reasons  which  induced  the  legislature  to  insert  the  exception 
may  have  been  as  varied  as  the  different  minds  of  its  members.  It  certainly  had  power 
to  "insert  it,  and  whether  the  power  was  reasonably  or  unreasonably  exercised,  or 
whether  it  was  expedient  to  enact  the  law,  are  questions  exclusively  within  the  ])rov- 
ince  of  the  legislative  branch  of  the  State  government,  and  their  judgment  must  neces- 
sarily be  decisive  upon  these  questions.  State  v.  Dent,  25  W.  Va.  1 ;  Ax  parte  Spinney, 
10  Xev.  328  ;    Wert  v.  Clutter,  37  Ohio  St.  347."  '] 

In  Trarjeser  v.  Gray,  73  Maryland,  250  (1890),  a  non-naturalized  Prussian  applied- 
for  a  writ  of  mandamus  to  compel  certain  commissioners  to  issue  to  him  a  license  for 
^^^       the  sale  of  intoxicating  li(|uors.     His  petition  was  dismissed ;  and  by  a  proceeding  in 
^  4^  the  nature  of  a  writ  of  error,  he  now  raised  the  question  whether  the  Maryland  statute 

of  1890,  c.  343,  for  regulating  the  sale  of  intoxicating  liquors,  was  valid.     The  court 
^"  (Bryan,  J  )  in  affirming  the  order  of  the  court  below,  said     "  In  the  law  which  we 
*^    are  noAi^  considering,  the  legislature  hedged  around  this  traffic  with  such  safeguards 


^ci/^  .-v^,/VL5^^f?^^--t^  A.^^^cXMr^'i-     .       'fr-V^  \n^.^  ^^j^^   a^ 

CIIAr.  v.]  TRAGESER   V.    CxRAY.  877 

as  were  deemed  advisable  for  the  purpose  of  protecting  the  public  interest.  It  was  au 
effort  to  restrict  the  licenses  to  such  persons  as  would  not  abuse  tlie  privilege  con- 
ferred;  to  this  end  the  ap])licant  was  required  to  establish  his  fitness  for  tiie  privilege 
by  abundant  testimon}^  and  to  promise,  under  oath,  that  lie  would  not  permit  on  liis 
premises  certain  violations  of  the  law,  which  have  frequently  been  associated  with  the 
traffic,  and  wliich  have  caused  great  scandal,  immorality,  and  disorder.  Anil  by  section 
f.5.3  /.  it  was  enacted  that  the  license  sliould  be  refused  in  all  cases,  whenever,  in  tiie 
opinion  of  the  said  board,  sucli  license  is  not  necessary  for  the  accommodation  of  the 
public,  or  the  petitioner  or  petitioners  is  or  are  not  fit  persons  to  wliom  sucii  license 
should  be  granted  ;  and  if  sufficient  cause  shall  at  anytime  be  shown,  or  proof  be  made 
to  the  said  board,  that  the  party  licensed  was  guilty  of  any  fraud  in  jjrocuring  such 
license,  or  has  violated  any  law  of  the  State  relatiug  to  the  sales  of  intoxicating 
li(inor,  the  said  board  shall,  after  giving  notice  to  the  person  so  licensed,  revoke  said 
license;  and  the  criminal  court  of  the  city  may  in  like  manner  revolve  said  license, 
if  the  party  should  be  convicted  before  it,  of  any  such  violatiou.  It  was  tliought 
proper  to  confine  the  license  to  citizens  of  the  United  States,  of  temperate  habits  and 
good  moral  character.  The  privilege  is  very  liable  to  be  abused,  and  abuses  would 
produce  great  public  detriment.  It  therefore  seemed  wise  to  the  legi.slature  to  confer 
it  only  on  those  who,  being  natives  of  the  country,  might  reasonably  be  supposed  to 
liave  a  regard  for  its  welfare;  or  wlio,  not -being  natives,  had,  as  required  by  the  natu- 
ralization law,  proven  by  credible  testimony  before  a  court  of  justice,  that  they  were 
attaclied  to  the  principles  of  tiie  Constitution  of  the  United  States,  and  were  well  dis- 
posed to  their  good  order  and  happiness.  It  was  certainly  the  function  of  the  law- 
TTifikino-  department  to  exercise  its  jndtrmeiit  mi  this  (|UCStion.  and  tiiis  court  lias  no 
riglit  to  criticise  its  conclusion.  We  do  not  tlii.uk  that  this  law  is,  in  any  manner,  in 
conflict  with  tlie  Constitution  of  this  State. 

"  We  regard  it  as  included  'in  that  immense  mass  of  Icfrislatioii  wliieh  embraces 
everything  within  tlie  territtirv  of  a  State,  not  surrendered  to  tlie  general  government.' 
'Gibbons  V.  Pad  en,  9  Wheaton,  203.  It  has  been  uniformly  held  in  all  courts  that  no 
clause  in  tlie  Federal  Constitution  interferes  with  the  power  of  the  States  to  promote 
and  protect  the  public  health,  peace,  morals,  and  good  order  within  their  respective 
limits.  ...  It  is,  however,  maintained  by  the  appellant  that  although  this  statute  was 
passed  apparently  for  the  purpose  of  exercising  this  power,  yet  it  is  in  conflict  with  the 
Fourteenth  Amendment,  because  it  denies  to  persons  not  citizens  of  the  United  States 
the  right  to  obtain  licenses  to  retail  liquor,  and  thereby  makes  an  unconstitutional  dis- 
crimination against  them.  The  sectiim  of  the  amendment  supposed  to  be  involved  is 
in  these  words:  'No  State  shall  make  or  enforce  any  law  which  shall  aln-idge  the 
privileges  or  immunities  of  citizens  of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liiierty,  or  property  without  due  process  of  law ;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  th?  laws.'  It  cannot  be  said  that 
any  man,  alien  or  citizen,  has  a  natural  right  to  retail  intoxicating  liquor.  According 
to  Bartenieiier  v.  Iowa;  18  Wallace,  129.  it  is  not  one  of  the  privj^gos  and  immunities 
of  citizens  of  the  United  States.  In  Mugler  v.  Kansas,  1 23  U.  S.  fi23,  it  was  said  that 
'such  a  riglit  did  not  inhere  in  citizenship,'  and  that  it  could  not  be  said  that  govern- 
ment interfered  with  or  impaired  any  one's  constitutional  rights  of  liberty  or  property, 
when  it  prohibited  the  manufacture  and  sale  of  intoxicating  drinks.  And  it  was  held 
that  this  prohibition  might  be  made  although  it  would  destroy  or  greatly  diminish  the 
value  of  manufactories,  which  had  been  erected  when  it  was  lawful  to  engage  in  such 
business.  In  Kidd  v.  Pearson,  128  U.  S.  1,  a  statute  of  Iowa  prohiluted  the  manufac- 
ture or  sale  of  intoxicating  liquors  except  for  mechanical,  medicinal,  culinary,  and 
sacramental  purposes;  but  any  citizen  of  the  vState  was  permitted  to  manufacture  or 
buy  and  sell  for  these  purposes,  except  hotel-keepers,  keepers  of  saloons,  eating-houses, 
grocery-keepers,  and  confectioners.  The  Supreme  Court  decided  that  the  statute  did 
not  in  anv  way  contravene  any  provision  of  the  Fourteenth  Amendment.  We  see  that 
the  privilege  "granted  was  confined  to  citizens  of  the  State,  and  that  there  was  a  dis- 
crimination against  five  classes  of  these  citizens.  But  in  truth,  the  valid  exercise  of  the 
police  power  does  not  depend  on  any  question  of  discrimination  for  or  against  particu- 


878  TRAGESER   V.    GRAY.  [clIAP.  V. 

lar  persons  or  classes  of  persons.  It  is  confided  to  the  wisdom  of  the  legislature  to 
make  such  a])i)lication  of  it  as  the  public  welfare  may  reciuire.  In  tlic  case  of  occupa- 
tions which  may  heconic  injurious  to  the  coniniunity,  they  may  ])rcihil)it  them  alto- 
gether.  or  tlicv  may  permit  them  only  in  certain  JucalUics  and  on  certain  lerms  an d 
under  cei'tain  restrictions,  or  they  may  grant  the  ])riviic,i;e  of  i>ursniii!;  tlicm  to  sol 1 1 e 
persons  and  dcnv  it  to  otliers.  Individual  interests  are  not  all  cnnsidcred  in  tlie  exer- 
rise  of  tliis  ]K)\ver.  Tliev  must  yiekl  when  they  arc  in  ojiiiusition  to  tlic  pulilic  g(K)d. 
And  the  legislature  is  to  determine  wliat  measures  will  best  jn-omole  tlie  puldic  good 
ia  dealing  with  these  matters.  In  Muf/ler  v.  Kansas  it  was  said  that  it  was  not  to  be 
supposed  that  tlie  Fourteenth  Amendment  was  intended  to  impose  restraints  on  the 
exercise  of  the  police  power  by  the  States.  It  was  also  said  that  a  State  could  not  by 
anv  contract  limit  its  exercise  of  this  power  where  the  public  health  and  the  public  morals 
would  be  prejudiced;  and  a  case  was  cited  with  ajjjjroyal  {Slone  v.  Mississij)/)!,  101 
U.  S.  814),  where  a  charter  to  conduct  a  lottery  had  been  granted  to  a  private  corjiora- 
tion  for  a  large  moneyed  consideration,  aud  was  afterwards  repealed,  and  the  rei)eal  was 
sustained  as  within  the  police  power  of  the  State.  And  in  the  same  case  the  court 
stated  WMth  great  empliasis  the  necessity  of  upholding  State  police  regulations  which 
were  enacted  in  good  faith  and  which  had  appro])riate  and  direct  connection  with  tliat 
protection  to  life,  health,  and  property  which  each  State  owes  to  its  citizens.  Anti  in 
this  case,  and  subscijueutly  in  Powell  v.  Pennsi/lvania,  127  U.  S.  684,  it  was  shown  that 
a  statu'e  enacted  in  good  faith  for  the  exercise  of  the  police  power  could  not  be  re- 
garded as  repugnant  to  the  Fourteenth  Amendment,  unless  it  had  no  real  or  substan- 
tial relation  to  the  objects  of  such  power.  In  the  Slaiujhter-House  Cases  (16  Wallace, 
86),  it  was  held  that  in  the  exercise  of  the  police  power  the  State  of  Louisiana  could 
lawfully  grant  to  a  single  corporation,  for  twenty-five  years,  the  exclusive  privilege  of 
maintaining  slaughter-houses  in  a  di.strict  of  country  containing  more  than  eleven  hun- 
dred square  miles,  aud  including  the  city  of  New  Orleans.  The  trade  of  a  butcher, 
though  of  great  utility  and  necessity,  is  lial^le  under  some  circumstances  to  injure  the 
public  health,  and  was,  therefore,  liable  to  this  sort  of  legislation. 

"  There  are  cases,  unquestionahly,  in  which  discriminations  again.st  particular  persons 
or  classes  of  persons  would  be  unlawful.  They  are  indicated  in  Powell  v.  Pennsylvania 
and  in  many  other  cases,  especially  in  the  cases  affecting  the  legislation  of  California  on 
the  subject  of  the  Chinese.  It  is  held  that  every  one  has  a  right  to  pursuean  ordiiiary 
calling  on  terms  of  equality  with  all  other  persons  in  sitnilar  circumstances;  that  is,  a 
calling  not  in  any  way  injurious  to  the  community,  or  likely  to  become  so.  The  court 
did  not,  in  Powell  v.  Pennsi/lvanla,  regard  the  making  of  oleomargarine  as  an  ordinary 
business  ;  nor  in  McGaheyv.  Virginia,  135  U.  S.  712,  was  the  traffic  in  ardent  spirits  so 
regarded.  In  the  Chinese  Cases,  Be  PajroU,  6  Sawyer,  349;  Re  Ah  Chomj,  6  Sawyer, 
45I,  and  YIck  Wo.  v.  Hopkins,  118  U.  S.  356,  the  legislation  in  question  was  directed 
against  the  Chinese,  and  was  intended  to  prevent  them  from  earning  a  livelihood  by 
their  own  labor;  or,  at  least,  to  impede  and  embarrass  them  as  much  as  possible  in 
their  efforts  to  do  so.  This  was  most  clearly  endent,  not  only  from  the  statutes  and 
ordinances  themselves,  but  from  the  article  in  the  Constitution  of  California,  under 
which  they  were  framed.  This  article  (19th)  was  entitled  '  Ciiinese,'  and  it  provided 
that  no  corporation  should  employ,  directly  or  indirectly,  in  any  capacity,  any  Chinese 
or  Mongolian  ;  that  no  Chinese  should  be  employed  on  any  State,  county,  municipal  or 
other  work,  except  in  punishment  for  crime ;  it  declared  that  the  presence  of  foreign- 
ers ineligible  to  become  citizens  (meaning  the  Chinese)  was  dangerous  to  the  well- 
baing  of  the  State;  and  the  legi.slature  were  directed  to  discourage  their  immigration 
by  all  means  within  their  power,  and  were  also  directed  to  delegate  all  necessary  power 
to  the  incorporated  cities  and  towns  of  the  State  for  the  removal  of  Chinese  l)eyond 
their  limits,  or  for  their  location  within  prescribed  portiims  of  tho.se  limits;  and  were 
also  directed  to  provide  the  necessary  legislation  to  prohibit  the  introduction  of  Chi- 
nese into  the  State.  One  of  the  judges  in  Parrott's  Case  said  of  this  article,  |It  is  in 
open  and  seemingly  contemptuous  violation  of  the  provisions  of  the  treaty  which  give 
to  the  Chinese  the  right  to  reside  here  with  all  the  privileges,  immunities  and  exemp- 
tions of  the  most  favored  nation.     It  is,  in  fact,  but  one  and  the  latest  of  a  series  of 


CHAP,  v.]  TRAGESER  V.    GRAY.         "  879 

enactments  designed  to  accomplisli  the  same  end.'  6  Sawj^er,  3G5.  It  was  apparent 
to  the  courts  which  decided  these  cases  that,  altliough  the  statutes  and  ordinances  in 
question  were  in  the  form  and  fashion  of  police  reguhitions,  yet  in  reality,  in  substance 
and  in  effect,  they  were  enactments  to  take  away  from  the  Ciiinese  the  right  to  labor 
for  a  living. 

"  They  struck  at  those  inalienable  rights  whicli  belong  to  human  beings  at  all  times 
and  in  all  places.  They  denied  them  the  e(pial  protection  of  tlie  laws  in  particulars  essen- 
tial to  tlieir  means  of  existence.  Their  evitlent  effect  and  purpose  were  to  accomplish  an 
unconstitutional  result,  and  therefore  they  were  necessarily  declared  to  be  void.  The  stat- 
ute now  before  us  oppresses  no  one,  and  was  intended  to  oppress  no  one.  It  does  not  take 
from  any  man  a  solitary  right,  privilege  or  immunity.  It  subjects  no  one  to  penalties  for 
its  violations  which  are  not  imposed  equally  on  all  offenders.  It  does  not,  it  is  true,  make 
an  equal  partition  of  tlie  privilege  of  liquor  selling  among  all  classes  of  persons.  But 
there  is  no  warrant  for  supposing  that  legislative  control  over  this  traffic  must  conform 
to  any  such  standard.  It  is  not  crippled  by  any  such  restraint.  It  overrides  all  pri- 
vate interests  and  embraces  all  means  which  are  necessary  and  jjroper  to  protect  the 
public  from  evils  connected  with  the  subject.  Assuredly  the  Supreme  Court  did  uot 
consider  this  control  as  limited  by  the  necessity  of  making  an  equal  distribution  of 
favors,  when  it  said  in  speaking  of  the  trade  in  liquor  and  its  consequences  :  '  The  police 
power  which  is  exclusively  in  tlie  States  is  alone  competent  to  the  correction  of  these 
great  evils,  and  all  measures  of  restraint  or  prohibition  necessary  to  effect  the  purpose 
are  within  the  scope  of  that  authority.'  Mugler  v.  Kansas,  123  U.  S.  659.  Nor  is  any 
such  limitation  consistent  with  the  decisions  in  Stone  v.  Mississippi,  101  United  States, 
814  ;  Beer  Co.  v.  Massachusetts,  97  United  States,  25  ;  and  Fertilizing  Companij  v.  Hjjde 
Park,  97  United  States,  659.  In  one  of  these  cases  a  franchise  which  had  been  pur- 
chased from  the  State  was  taken  away  from  the  purchaser  without  compensation  to 
him,  because  it  was  considered  by  the  legislature  to  be  hurtful  to  the  public  morals. 
In  the  other  two  cases,  by  the  exertion  of  the  police  power,  property  of  vast  amount 
was  rendered  valueless,  although  it  had  been  acquired  under  the  express  sanction  of 
the  legislature.  It  is  needless  to  refer  again  to  the  Slaughter- House  Cases,  where  there 
was  a  severe  discrimination  in  favor  of  a  single  corporation  and  against  every  one  else, 
solely  because  the  protection  of  the  public  health  was  involved. 

"  It  has  been  maintained  that  the  appellant  (Trageser)  has  rights  under  existing  trea- 
ties which  have  been  infringed  by  the  denial  of  licenses  to  aliens.  Our  opinion  on  this 
question  has  been  sufficiently  indicated.  But  a  few  words  more  may  be  added.  If  we 
assume,  for  the  sake  of  argument,  that  Trageser  has  under  treaties  every  right  which 
a  citizen  could  have,  the  answer  is  that  no  citizen  of  the  United  States  can  complain 
because  a  police  regulation  denies  him  the  privilege  of  selling  liquor,  even  if  the  privi- 
lege is  granted  to  other  citizens.  We  are  unable  to  conceive  that  any  one,  citizen  or 
alien,  can  acquire  rights  which  could  in  any  way  control,  impair,  impede,  limit  or 
diminish  the  police  power  of  a  State.  Such  power  is  original,  inherent  and  exclusive  ; 
it  has  never  been  surrendered  to  the  general  government,  and  never  can  be  surren- 
dered without  imperilling  the  existence  of  civil  society. 

"  The  Act  of  Assembly  involved  in  this  controversy  being  in  our  opinion  in  all  re- 
spects a  valid  law,  it  is  perliaps  unnecessary  to  say  anytliing  more  ;  but  we  will  observe 
that,  even  if  tlie  clause  relating  to  aliens  were  unconstitutional,  the  other  portions  of 
the  statute  would  not  be  affected.  Aliens  could  not  even,  in  that  event,  obtain  licenses 
to  sell  liquor  without  the  approval  of  the  Board  of  Commissioners. 

"  The  order  refusing  the  mandamus  must  be  affirmed.  Order  affirmed."^ 

Altey,  C.  J.,  and  McSherry,  J.,  concurred  in  the  affirmance  of  the  order  appealed 
from,  refusing  the  mandamus,  but  for  reasons  different  from  those  assigned  in  the 
opinion  of  the  majority  of  the  court. 

1  Compare  Perry  v.  Citij  Gov.,  7  Utah,  143.  —  Ed. 


880 


RICE   ET    AL.    V.    TAKKMAN. 


[chap. 


RICE  ET  AL.   V.  PARKMAN. 
Supreme  Judicial  Court  of  Massachusetts.     1820. 

[16  J/«ss.  .■526.]! 

A  writ  of  entry.  The  tlemandants  claim  as  heirs  of  their  mother  (who 
died  ill  1  I'd'!),  and  entitled  to  the  possession  upon  the  death  of  their  father, 
in  1815,  tenant  bj'  the  cartes^'.  The  tenant  sot  up  title  through  one 
Homer,  to  whom  the  father  had  sold  the  demanded  premises  under  a 
leojslative  resolve,  purporting  to  authorize  the  father,  on  givino-  bond, 
to  sell  and  convey  and  to  invest  the  proceeds  for  the  use  of  tlie  said 
children.  The  demandants  reply,  protestin<>;  that  there  was  no  such 
resolve  or  sale,  and  traversing  the  giving  of  the  bond.  Issue  was 
joined  upon  the  traverse,  and  a  verdict  returned,  that  the  bond  was 
given  according  to  the  directions  of  the  resolve. 

The  demandants  objected  at  the  trial,  that  no  authority  to  sell  the 
estate  could  be  legally  derived  from  the  said  resolve  ;  but  that  the  same 
was  wholly  void,  as  respected  them. ;  especially  as  it  did  not  a))pear 
that  an}'  notice  was  g'^ven  before  the  license  was  granted.  This  objec- 
tion was  overruled  by  the  Chief  Justice,  before  whom  the  trial  was  had, 
November  Term ,1818.  A  new  trial  was  to  1)e  granted,  if,  in  the  opin- 
ion of  the  court,  the  said  resolve  did  not  give  authority  to  sell  as 
aforesaid. 

Ward^  for  the  demandants. 
Gallison,  for  the  tenant. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  If  the  power,  by 
which  the  resolve,  authorizing  the  sale  in  this  case,  was  passed,  were  of 
a  judicial  nature,  it  would  be  very  clear,  that  it  could  not  haA'e  been 
exercised  by  the  leoislature,  without  violating  an  express  provision  o f 
the  Constitution .  But  it  does  not  seem  to  us  to  be  of  this  description 
of  power ;  for  it  was  not  a  case  of  controversy  between  party  and 
party  ;  nor  is  there  any  decree  or  judgment,  affecting  the  title  to  prop- 
erty. The  only  object  of  the  authority  granted  by  the  legislature  was, 
to  transmute  real  into  personal  estate,  for  purposes  beneficial  to  all 
ijjj  <y/i  a^J)  who  were  interested  therein. 
-' '  This  is  a  power  frequently  exercised  b}'  the  legislature  of  this  State, 

since  the  adoption  of  the  Constitution  ;  and  by  the  legislatures  of  the 
province,   and  of  the  colony,  while   under  the   sovereignty  of  Great 
Britain  ;  analogous  to  the  power  exercised  by  the  British  Parliament, 
■utH  ^^  similar  subjects,   time  out  of  mind.     Indeed  it  seems  absolutely 
^^'^/f  necessary  for  the  interest  of  those,  who,  by  the  general  rules  of  law, 

^    Ctx         are  incapacitated  from  disposing  of  their  property,  that  a  power  should 
AaAvJ^.  exist  somewhere,  to  convert  lands  into  money.     For  otherwise  many 
0  minors  might  suffer,  although  having  property ;  it  n 


lot  being  in  a  con- 


^  The  statement  of  facts  is  shortened 


5d  —Ed.  .  ,      ^A^?>^^ 


1a. 


\-^  6l\UJ^j<XjXX. 


I 


/ 


CHAP,  v.] 


RICE   ET   AL.    V.    PARKMAN.  SSI  aJLjJUo^'l 


rlitioii  to  yield  an  income. 


Tliis  power  must  rest  in  tlie  legislature  in    if^ 


this  Commonwealth  ;  that  body  being;  alone  competent  to  act 'us  the 
general  guardian  and  i)rotector  of  those  who  are  disabled  to  act  for 
themselves. 

It  was  nndoubtedl\'  wise  to  delegate  this  authority  to  other  bodies, 
whose  sessions  are  regular  and  constant,  and  whose  structure  may 
enable  them  more  easily  to  understand  the  merits  of  the  particular 
applications  brought  before  them.  But  it  does  not  follow  that,  because 
the  power  has  been  delegated  by  the  legislature  to  courts  of  law,  it  i s 
judicial  in  its  character.  For  aught  we  see,  the  same  authority  might 
h aye  been  given  to  the  selectmen  of  each  town,  o r  to  the  clerks  o r_ 
registers  of  the  counties ;  i t  being  a^niere  ministerial)  act,  ccji'tainly 
requiring  discretion,  and  sometimes  knowledge  of  law,  for  its  due  .ex- 
ercise ;  but  still  partaking  in  no  degree  of  the  characteristics  of  judicial 
power. 


ri  f>fcva>^« 


It  is  doubtless  included  in  the  general  authority,  granted  by  tlie 
people  to  the  legislature  in  the  Constitution.  For  full  power  and 
authority  is  given,  from  time  to  time,  to  make,  ordain,  and  establish  all 
manner  of  wholesome  and  reasonable  orders,  laws,  statutes  and  ordi- 
nances, directions  and  instructions  (so  as  the  same  be  not  repugnant  or 
contrary  to  the  Constitution),  as  they  shall  judge  to  be  for  the  good  and 
welfare  of  the  Commonwealth,  and  of  the  subjects  tliereof. 

No  one  imagines  that,  under  this  general  authority,  the  legislature 
could  deprive  a  citizen  of  his  estate,  or  impair  auN'  valuable  contract  in  C<?U/tf  ^ 
which  he  might  be  interested.  But  there  seems  to  be  no  reason  to  ^  (&t^ 
doubt  that,  upon  his  application,  or  the  application  of  those  who  properly    ,  .  /7 

rci)resent  liim,  if  disabled  from  acting  himself,  a  beneficial  change  of  0 

his  estate,  or  a  sale  of  it  for  purposes  necessary  and  convenient  for  the    a/J^^J^  f^ 


lawful  owner,  is  a  just  and  proper  subject  for  the  exercise  of  that  author- 
ity.    It  is,  in  fact,  protecting  him  in  his  property,  which  the  legislature 
is  bound  to  do  ;  and  enabling  him  to  derive  subsistence,  comfort,  and 
education  from  i^roperty,  which  might  otherwise  be  wholly  useless  dur- 
ing that  period  of  life,  when  it  might  be  most  beneficially  emploved. 
rif  this  be  not  true,  then  the  general  laws,  under  which  so  many  estates 
of  minors,  persons  non  compos  mentis^  and  others,  have  been  sold  and 
converted  into  raone}',  are  unauthorized  by  the  Constitution,  and  void^? 
For  thej20in-ts  derive  their   authority  from  the  legislature,  and   it  not  '^'^-^-^ 
being  of  a  judicial  nature,  if  the  legislature  had  it  not,  tlipy  eonld  nnt  ^  ^^ix/^ 


CaJii-    tU 

in  the  only  constitutional  way,  1)3'  establishing  a  general  provision  ;  and  [^'^'^^ 
that,  haying  done  this,  their  authority  has  ceased,  they  having  no  right  ^ 
VOL.  I.  — 56 


communicate  it  to  any  other  body.  Tims,  if  there  were  no  power  to 
relieve  those  from  actual  distress,  who  had  unproductive  i>ropcrty,  a n d 
were  disabled  from  conveying  it  themselves,  it  would  seem  that  one  of 
the  most  essential  objects  of  government,  that  of  providing  for  the 
welfare  of  the  citizens,  would  be  lost. 

But  the  argument,  which  has  most  weight  on  the  part  of  the  demand- 
ants, is  that  the  legislature  has  exercised  its  power  over  this  subject. 


aJ'^  ,^   (yvcc  tL^  -^^    oMKr<^   Xr<^^ 


m .  -is 


.    cut  /h>  -fl  2^    '    Huystc^Ji^  '/VCA.     a. 


V 


^ 


882  BREVOORT  V.    GRACE  ET  AL.  [cHAP.  V. 

to  interfere  in  particular  cases.  And  if  the  question  were  one  of  ex- 
pediency only,  we  should  perhaps  be  convinced  by  the  argument,  that 
it  would  be  better  for  all  such  ap[)lications  to  be  made  to  the  courts 
empowered  to  sustain  them. 

But  as  a  question  of  right,  we  think  the  argument  fails.  The  con- 
stituent, when  he  has  delegated  an  aulliority  without  an  interest,  may 
do  the  act  himself,  wliich  he  has  authorized  another  to  do  ;  and  es[)e- 
ciallv  when  that  constituent  is  the  legislature,  and  is  not  prohibited  by 
the  Constitution  from  exercising  the  authorit}'.  Indeed  the  whole 
authority  miuht  be  revoked,  and  tlie  legislature  resume  the  burden  of 
this  busniess  to  itself,  if  in  its  wisdom  it  should  determine  that  the 
common  welfare  required  it. 

It  is  not  legislation,  which  must  be  b^'  general  acts  and  rules,  but 
the  use  of  a  parental  or  tutorial  power,  for  purposes  of  kindness,  with- 
out interfering  with,  or  prejudice  to  the  rights  of  an}-,  but  those  who 
apply  for  specific  relief.  The  title  of  strangers  is  not  in  anj'  degree 
affected  by  such  an  interposition. 

In  the  case  before  us,  the  object  sought  for  could  not  have  been 
obtained  in  the  ordinary  way  of  a  license  from  a  court  of  law ;  for  by 
that  nothing  could  have  been  sold  but  the  reversion  belonging  to  the 
heirs  ;  and  the  proceeds  of  that  alone  would  have  been  put  at  mterest ; 
whereas,  by  a  sale  of  the  whole,  as  was  authorized  by  the  legislature, 
there  is  no  doubt  a  better  price  was  obtained,  and  the  proceeds  finally 
coming  to  the  heirs  were  greater  than  they  would  otherwise  have  been. 
It  is  true,  that  the  same  purpose  might  have  been  effected  substan- 
tially b}'  a  license  to  sell  the  reversion,  and  a  sale  of  the  estate  for 
life  without  license  b}'  the  tenant  of  the  freehold.  But  still  the  pro- 
ceeds would  not  have  been  vested  so  beneficially,  as  they  were  under 
the  actual  sale. 

We  do  not  consider  notice  to  have  been  essential,  if  the  fact  be  that 

none  was  given.     The  father  acted  as  guardian,  and  he  had  no  interest 

adverse  to  that  of  his  children.     Notice  is  not  required  by  law  to  be 

given,  upon  applications  for  the  sale  of  the  estates  of  minors.^ 

.  Judgment  for  the  tenant  on  the  verdict. 

'^  In  Brevoort  v.  Grace  et  al,  53  N.  Y.  245,  250  (1873),  the  Court 
of  Appeals  (Grover,  J.)  said:  "The  real  question  in  the  case  is 
whether  the  legislature   has  the  power,  by  special  Act,  to  authorize 

'  In  IJohlen  v.  James,  11  Mass.  .397,  the  court  decided  that  the  legislature  could  not 
suspend  the  operation  of  a  general  law  to  give  a  remedy  in  favor  of  an  individual, 
although  the  Constitution  provides  that  the  power  of  suspending  the  laws,  or  the  exe- 
cution of  the  laws,  may  be  exercised  by  the  legislature,  or  by  authority  derived  from 
the  legislature,  to  be  exercised  in  such  particular  cases  only  as  the  legislature  shall 
expres.sly  provide  for;  and  although  the  practice,  ever  since  the  adoption  of  the  Con- 
stitution, had  been  to  enact  remedial  laws  in  like  cases  But  the  soundness  of  this 
decision  has  been  questioned.  —  Ed.  [of  11  Mass.  Rep] 

See  Daviaon  v.  Johonnof,  7  Met.  388 ;  Sohier  v.  Mass.  Gen.  Hospital,  3  Cush.  483 ; 
Sohier  V.  Trin.  Ch.,  109  Mass.  1 .  —  Ed. 


CHAP,  v.]  BREVOORT   V.   GRACE   ET   AL.  883 

and  provide  for  the  sale  of  the  interest  of  known  parties  who  have 
attained  their  naajority  and  who  are  competent  to  act  for  themselves  in 
real  estate,  and  convert  the  same  into  personal,  and  provide  for  the  in- 
vestment and  management  of  the  proceeds  without  their  consent,  upon 
the  ground  that  sucli  sale  would,  in  their  judgment,  promote  the  interest 
of  such  parties  and  others  who  are  infants  or  who  are  not  in  being,  and 
cannot,  therefore,  provide  for  the  management  of  the  property.  If  the 
legislature  possesses  this  power,  the  Act  in  question  is  valid  iu  all  re- 
spects,not  onl}"  for  the  reason  that  in  the  present  case  it  clearly  appears 
that  the  life  tenants  w'ouid  be  greatly  benefited  by  a  sale,  but  also  made 
highh'  probable  that  the  interests  of  those  in  remainder  would  be  pro- 
moted. It  thus  appears  that  if  such  power  is  possessed,  this  is  a  proper 
case  for  its  exercise.  But  if  the  legislature  possesses  the  power,  it  also 
has  the  power  to  determine  whetiier  the  case  presented  is  one  proper  for 
its  exercise,  and  its  determination  is  conclusive,  as  also  of  the  mode 
and  safeguards  under  which  it  shall  be  exercised.  Henry  Brevoort  has, 
under  the  will,  the  remainder  in  fee  iu  case  he  shall  survive  his  mother, 
subject  to  open  and  let  in  any  other  children  of  Mrs.  Brevoort  who  may 
hereafter  be  born,  who  shall  survive  her.  We  have  seen  that  his  title 
would  pass  under  the  deed  of  the  referee,  for  the  reason  that  he  united 
in  the  petition  and  thereby  assented  to  the  proceedings  under  which  the 
sale  was  made. 

"  Special  Acts  of  the  Legislature,  authorizing  the  sale  of  the  real  estate 
of  infants  and  others  incapable  of  acting  for  themselves,  have  been  held 
valid  in  this  State,  and  that  a  valid  title  as  to  such  persons  is  acquired 
under  sales  pursuant  to  such  Acts.  Clarke  v.  Van  Sarla]/,  15  Wend. 
436.  The  same  case  was  before  the  Court  of  Errors  in  the  name  of 
Cochrane  and  Wife  v.  Van  Surlay^  20  Wend.  365,  when  the  same  rule 
was  held,  based  upon  the  same  reason,  that  it  was  the  legitimate  exer- 
cise of  that  paternal  power  over  the  persons  and  property  of  infants, 
which  under  the  common  law  was  an  inherent  right  of  sovereign  power, 
which  might  be  exercised  under  general  laws  or  under  peculiar  circum- 
stances by  special  legislation.  But  in  his  opinion  in  this  case,  Ver- 
planck.  Senator,  says,  speaking  of  clauses  in  the  Constitution  of  1822 
which  are  also  contained  in  the  present  Constitution  :  '  Further  protec- 
tion is  given  to  property  by  adding  a  prohibition  against  the  taking  of 
private  property  for  public  use  without  just  compensation,  and  also  an- 
other against  the  depriving  any  one  of  life  or  pi'operty  without  due 
pi'ocess  of  law  and  b}^  mere  arbitrary  legislation,  under  whatever  pre- 
text of  public  or  private  good.' 

"  In  Williamson  v.  Berry,  8  How.  495,  and  in  a  subsequent  case,  the 
Supreme  Court  of  the  United  States  determined  differently  upon  the 
same  title,  but  the  difference  between  that  and  the  courts  of  this  State 
was  not  as  to  the  power  of  the  legislature  to  authorize  the  sale,  but  as 
to  whether  the  consent  of  the  Chancelloi-,  etc.,  which  was  required  by 
the  Act,  had  been  properly  given,  so  as  to  give  validit}'  to  the  sale. 

"  In  Suydam  v.  Williamson^  24  How.  427,  the  United  States  Supreme 


884  BREVOORT   V.   GRACE   ET   AL.  [CHAP.  V. 

Court  abandoned  the  decision  made  in  Williamson  v.  Berry,  supra,  and 
adopted  and  followed  the  decisions  of  the  courts  of  this  State,  under  the 
salutary  rule  that  when  any  piinciple  of  law  establishing  a  rule  of  real 
property  has  been  settled  by  the  courts  of  a  State,  that  rule  will  be 
applied  by  the  Federal  courts  in  cases  where  the  latter  acquire  jurisdic- 
tion of  cases  within  the  State  hy  reason  of  the  character  or  residence 
of  the  parties. 

'•  In  Towle  v.  Forney^  4  Duer,  164,  the  doctrine  of  Cochrane  v.  Sm-h/y 
was  reatBrmed  b}'  this  court.  Other  cases,  to  the  same  effect,  might  be 
cited,  but  from  those,  siqji'a,  it  is  clear  that  a  special  Act  of  the  Legis- 
lature, authorizing  the  sale  of  the  lands  of  infants,  etc.,  is  within  the 
constitutional  power  of  the  legislature. 

"  Doubts  were  expressed  in  some  of  tlie  cases,  supra,  whether  this 
power  extended  to  those  not  in  being,  who  might  thereafter  be  entitled 
to  some  estate  in  the  premises.  The  reasons  upon  which  the  rule  is 
based  as  to  the  former,  apply  wath  equal  force  as  to  the  latter.  In  both 
there  is  a  want  of  capacity'  to  manage  and  preserve  the  property,  so  as 
to  protect  the  interest  of  those  who  are  or  may  become  entitled  thereto, 
and  hence  the  necessity  of  devolving  this  duty  upon  the  sovereign.  For 
this  purpose  the  legislature,  under  our  system,  represents  and  possesses 
the  powers  of  the  sovereign  authority,  and  ma^-  discharge  the  dut}' 
either  by  general  or  special  laws,  as  will  best  protect  the  rights  of  those 
interested,  although  it  is  obvious  that  the  former  should  be  preferred  in 
all  cases  where  practicable. 

"  Mead  X.  Mitchell,  17  N.  Y.  210,  was  a  case  of  partition,  in  which 
it  was  held  that  a  valid  sale  of  the  future  contingent  interests  of  those 
not  in  being  might  be  made  pursuant  to  the  judgment  in  the  action. 
Although  this  is  not  an  authority  precisely  in  point,  yet  the  judgment, 
as  well  as  the  opinions,  show  that  such  interests  were  equally  within  the 
control  of  the  legislature  as  those  of  infants,  etc. 

"  Having  arrived  at  the  conclusion  that  the  legislature  may,  by  special 
Act,  authorize  the  sale  of  the  lands  of  those  not  capable  of  acting  for 
themselves,  and  also  the  contingent  rights  of  those  not  ^?^  esse,  it  follows 
that  a  valid  title  would  ha^e  passed  by  virtue  of  the  deed  of  the  referee, 
as  to  any  future  children  of  Mrs.  Brevoort,  or  anv  issue  of  Henry  Bre- 
voort  hereafter  born.  This  w^ould  make  the  title  valid  as  against  ever3-- 
body  except  Mrs.  Leff'erts,  the  widow  of  the  testator,  and  the  heirs  of 
the  children  of  his  brother  John.  No  point  is  made  as  to  the  right  of 
the  former ;  I  shall  therefore  assume  that  as  to  her  the  title  has  been 
made  satisfactory,  as  it  very  readily  might  be. 

•'  The  question  then  is  as  to  the  rights  of  the  adult  heirs  of  the  children 
of  the  testator's  brother  John.  In  the  event  of  the  death  of  Mrs.  Bre- 
voort, leaving  no  issue  surviving,  an  event  which  is  possible,  the  title  to 
the  premises  would  vest  in  part  in  these  adult  heirs  as  tenants  in  com- 
mon with  the  other  heirs,  who  are  now  infants,  unless  these  rights  are 
barred  by  the  sale  under  the  statute.  The  question  is  thus  presented, 
whether  the  legislature  can,  by  a  special  statute,  authorize  the  sale  of 


/ 


CHAP,  v.]  BKEVOORT  V.   GRACE  ET  AL.  885 

lands  to  which  adults,  competent  to  act  for  themselves,  have  a  contin- 
gent right,  and  thus  cut  ott'  such  contingent  interest  therein,  should  such 
events  occur  as  would  give  the  title  in  whole  or  part  to  those  having 
such  interest. 

"  It  is  urged  b^'  the  counsel  for  the  appellants  that  such  interest  is  not 
barred,  for  the  reason  that  the  adult  heirs  were  not  parties  to  and  had 
no  notice  of  the  proceedings.  To  this  the  counsel  for  the  respondent 
answers,  that  it  was  not  necessary  to  make  them  parties  or  give  them 
notice,  as  their  interest  was  contingent,  and  represented  by  Henry  Bre- 
voort,  who  was  a  party,  and  who  had  a  prior  vested  remainder  in  fee, 
subject  to  be  defeated  by  his  death  during  the  life  of  his  mother,  Mrs. 
Brevoort,  and  cites  Clarke  Y.Cordis,  -L  Allen,  466,  Nodinex.  Greenfield, 
7  Paige,  544,  and  Mead  v.  Mitchell,  17  N.  Y.  210,  in  support  of  the 
position.  In  regard  to  this,  I  think  that  if  the  legislature  possesses  the 
power  to  authorize  the  sale,  and  thus  cut  off  the  rights  of  parties,  the 
mode  and  manner  of  conducting  it  are  questions  for  its  determination. 
The  questions  whether  the  interest  of  all  parties  will  be  promoted  by  a 
sale,  and  whether  a  sale  shall  be  made,  when  and  how,  may  be  deter- 
mined in  the  statute  ;  or  power  to  hear  and  determine  all  or  any  of  them 
may  by  the  Act  be  conferred  upon  the  courts,  and  in  case  the  latter 
course  is  adopted,  the  Act  may  provide  as  to  who  shall  be  made  parties, 
and  have  notice  of  the  proceedings,  as  the  legislature  shall  judge  neces- 
sary and  sufficient  for  the  protection  of  all  interests  to  be  affected  by 
the  sale. 

"  The  real  question  is  whether  the  legislature  has  the  power,  by  a  sale 
under  a  special  Act,  to  extinguish  the  rights  of  those  of  legal  capacity 
to  act  for  themselves  in  real  estate,  vested  or  contingent,  upon  the 
ground  that  in  its  judgment,  or  of  that  of  any  of  the  judicial  tribunals 
of  the  State,  the  interests  of  all  would  be  promoted  thereby,  without  the 
consent  of  such  parties.  This  precise  question  was  decided  in  the  neg- 
ative by  this  court  in  Poioers  v.  Bercjen,  2  Selden,  3.")8.  The  validity  of 
the  statute  was,  in  that  case,  attempted  to  be  upheld,  upon  the  ground 
that  a  sale  was  necessary  to  provide  for  the  payment  of  taxes  and  assess- 
ments ;  but  the  opinion  shows  that  neither  the  Act  nor  the  proceedings 
showed  any  such  foundation  therefor.  In  the  present  case  the  Act  and 
proceedings  show  that  the  premises  were  largely  incumbered  by  both  ; 
but  the  difficulty  is,  that  the  quantity  of  land  authorized  to  be  sold,  and 
which,  in  fact,  was  sold,  was  not  limited  to  the  quantity  necessary  for 
that  purpose.  The  Act  authorized  the  sale  of  the  entire  premises,  and, 
under  its  provisions,  all  have  been  sold,  in  tlie  aggregate,  for  about 
eight  hundred  thousand  dollars,  a  part  of  which  were  purchased  by  the 
appellants.  Surely  a  sale  of  land,  which  was  already  subdivided  into 
parcels  and  sold  in  that  manner,  cannot  be  upheld  on  the  ground  that  it 
was  necessary  for  the  payment  of  taxes  and  assessments  amounting 
only  to  a  small  part  of  that  sum.  The  Act  could  only  be  sustained 
upon  that  ground  by  limiting  the  sale  to  a  quantity  necessary  for  those 
purposes.     In  the  case  last  cited,  the  learned  judge  concedes  the  power 


886  BREVOOUT   V.    GRACE    ET   AL.  [CIIAP.  V. 

of  the  legislature,  in  acting  as  the  guardian  and  protector  of  those  in- 
capable of  acting  for  themselves  by  reason  of  infancy,  lunacy,  etc.,  to 
pass  general  or  special  laws  under  which  an  effectual  disposition  of  their 
lands  and  other  propert}'  may  be  made  in  order  to  promote  their  inter- 
ests ;  and,  after  an  allusion  to  the  fact  that,  in  EngUind,  jirivate  Acts 
of  Parliament  are  a  mode  of  assurance,  i)roceeds  to  say  that  here  the 
sovereign  and  absolute  power  resides  in  the  people,  and  that  the  legisla- 
ture can  exercise  such  powers  onh*  as  have  been  delegated  to  it.  The 
right  of  eminent  domain  or  inherent  sovereign  power  gives  the  legisla- 
ture control  of  private  property  for  public  uses,  and  only  for  such  uses  ; 
in  such  cases,  the  interest  of  the  public  is  deemed  paramount  to  that  of 
an}'  individual,  and  yet,  even  here,  the  Constitution  of  the  United  States 
and  the  Constitution  of  this  State  have  imposed  a  salutary  check  upon 
the  exercise  of  legislative  power  for  that  purpose,  b}'  providing  that 
private  property  shall  not  be  taken  for  public  use  without  just  compen- 
sation. It  follows  that  if  the  legislature  should  pass  an  Act  to  take 
private  property  for  a  purpose  not  of  a  public  nature,  or  if  it  should 
provide,  through  certain  forms  to  be  observed,  to  take  the  property  of 
one  and  give  it  or  sell  it,  which  is  the  same  thing  in  principle,  to  an- 
other ;  or,  if  it  should  vacate  a  grant  of  property  under  the  pretext  of 
some  public  use,  such  cases  would  be  gross  abuses  of  the  discretion  of 
the  legislature  and  fraudulent  attacks  on  private  rights,  and  the  law 
would  be  clearly  unconstitutional  and  void.  2  Kent's  Com.  340.  If  the 
power  exists  to  take  the  property  of  one  without  his  consent  and  transfer 
it  to  another,  it  may  as  well  be  exercised  without  making  compensation 
as  with  it,  for  there  is  no  provision  in  the  Constitution  that  just  com- 
pensation shall  be  made  to  the  owner  when  his  property  shall  be  taken  for 
private  use.  The  power  of  making  contracts  for  the  sale  and  disposition 
of  private  property  for  individual  owners  has  not  been  delegated  to  the 
legislature,  or  to  others,  tlirough  or  by  any  agency  conferred  on  them 
for  such  purpose  by  it ;  and  if  the  title  of  A.  to  the  property  can,  with- 
out his  fault,  be  transferred  to  B.,  it  may  as  well  be  effected  without  as 
with  a  consideration.  After  citing  and  commenting  upon  some  author- 
ities, tlie  judge  concludes  by  holding  the  Act  void,  and  that  a  good  title 
was  not  acquired  by  a  deed  given  pursuant  to  a  sale  made  under  its 
provisions.  The  court  unanimously  concurred  in  this  conclusion.  The 
only  difference  between  that  and  the  present  case  is,  that  in  that  the  ex- 
isting children  of  the  testator's  daughter  Eliza,  to  whom  the  fee  was 
given  in  case  their  mother  died  in  their  lifetime,  were  not  required  to 
be  and  were  not  made  parties  to  the  proceeding,  wiiile  in  the  present, 
Henry  Brevoort,  tlie  only  child  of  Mrs.  Brevoort,  was  so  required  by 
the  Act,  and  was  a  party.  This  difference  will  be  hereafter  considered. 
"  The  counsel  for  the  respondents  insists  that  the  principle  upon  which 
Powers  v.  Bergen  was  decided  was  modified  or  restricted  by  the  same 
court  in  Leggett  v.  Hunter,  19  N.  Y.  446.  In  the  latter  the  court  held, 
first,  that  the  trustee  had  power,  under  the  will,  to  sell  and  convey  the 
lands  in  question  in  the  absence  of  any  Act  of  the  Legislature  conferring 


CHAP,  v.]  BEEVOORT   V.    GRACE    ET   AL.  887 

authority  for  that  purpose  upon  hiiu,  and  also  that  the  Act  b}'  which 
such  authority  was  eonferred  was  constitutional  and  valid.  It  appears, 
from  tlie  report,  that  all  the  members  of  the  court  concurred  in  the  re- 
sult, and  that  the  necessary  number  to  decide  concurred  upon  both 
points.  The  report  shows  tliat  it  was  not  designed  in  the  latter  to  over- 
rule the  former  upon  the  point  last  considered  in  the  opinion,  but  to  dis- 
tiuguish  the  case  then  under  consideration  from  that.  In  Leggett  v. 
Hunter^  it  appeared  that  Gerardus  Post  was  owner  in  fee  at  the  time  of 
his  death ;  that  he  left  five  children,  three  sons  and  two  daughters,  sur- 
viving ;  that,  by  his  will,  he  devised  one-fifth  of  his  real  estate  to  each 
of  his  sons  in  fee,  and  two-fifths  thereof  to  trustees  during  the  lives  of 
his  two  daughters,  one  in  trust  for  each  daughter  during  her  life,  re- 
mainder in  fee  to  her  issue.  The  will  made  no  devise  over,  in  case  the 
daughter  died  leaving  no  issue.  It  appeared  that  the  daughter  who  was 
entitled  to  the  income  of  the  lands  in  question,  for  life,  had  children  who 
were  infants  at  the  time  of  the  passage  of  the  Act  and  of  the  sale,  the 
validity  of  which  was  the  question  involved  in  the  questions  submitted. 
Clearl}'  as  to  these  infants  the  statute  and  sale  were  valid  by  all  the 
authorities,  and  valid,  as  we  have  seen,  as  to  any  after-born  children  of 
the  daughter.  The  latter  point  is  discussed  in  the  opinion,  and  the  con- 
clusion adopted  that  the  sale  under  the  Act  would  be  valid  as  to  such 
children.  But  nothing  is  said  in  the  opinion  as  to  the  rights  of  the  adult 
heirs  of  the  testator  in  case  the  daughter  died  without  issue.  This  re- 
mainder was  undisposed  of  by  the  will,  and  descended  to  the  heirs  of 
the  testator.  The  case  is  entirely  silent  as  to  this  ;  and  whether  at  the 
time  these  heirs  or  any  of  them,  except  the  daughter,  were  adults,  does 
not  appear.  In  the  opinion  the  judge  says  :  '  The  court  decided,  in 
Poioers  V.  Bergen^  that  the  legislature  (except  in  cases  of  necessity 
arising  from  infanc}',  insanity,  or  other  incompetency  of  those  in  whose 
behalf  it  acts)  has  no  power  to  authorize  by  special  Act  the  sale  of 
private  property  for  other  than  public  uses  without  the  consent  of  the 
owner.'  This  is  a  correct  statement  of  the  point  decided.  He  then 
proceeds  to  state  that  in  that  case  no  reason  appeared,  and  then,  as  I 
think,  losing  sight  of  the  only  reasons  upon  which  such  legislation  can 
be  sustained,  proceeds  to  distinguish  that  case  from  that  he  was  consider- 
ing, by  showing  the  probably  great  pecuniary  benefits  to  be  derived  from 
a  sale  in  the  one  then  in  judgment.  The  power  cannot  be  based  upon 
such  considerations.  The  great  confusion  of  titles  that  would  ensue  by 
holding  the  sale  valid  if  advantageous  to  the  parties  interested,  but  if 
otherwise  invalid,  must  have  escaped  the  attention  of  the  learned  jndge. 
As  already  remarked,  when  power  is  given  to  the  legislature  to  do  an 
act,  it  includes  the  power  of  determining  conclusively  whether  its  exer- 
cise is  expedient  in  the  particular  case.  Leggett  v.  Hunter  did  not 
assume  to  determine  that  the  legislature  had  power  to  authorize  the  sale 
of  the  private  property  of  adults  without  the  consent  of  the  owner, 
other  than  for  public  use,  however  advantngeous  it  might  be. 

"  In  the  Matter  of  the  Petition  of  the  Trustees  P.  E.  School,  c6c., 


888  BliEVOOKT   V.    GRACE   ET   AL.  [CUAP.  V. 

31  N.  Y.  574,  it  was  held  that  the  legislature  had  power  to  authorize  the 
sale  of  land  for  the  payment  of  taxes  and  assessments  thereon,  and 
Poicers  V.  Bergen  was  referred  to  as  correctly  decided  ;  referring  to  that 
case,  Dcnio,  C.  J.,  says  :  It  has  been  decided  by  this  court  that  the 
legislature  has  no  constitutional  power  to  cause  land  to  be  sold  fur  tlie 
purpose  of  disentangling  an  estate,  where  the  parties  entitled  to  future 
estates  are  under  no  disability  to  act  for  themselves,  though  it  is  fully 
admitted  that  it  may  be  done  when  the  rights  of  infants,  lunatics,  etc., 
are  concerned.  This  must  be  regarded  as  the  settled  law  of  the  State, 
although  in  conflict  with  Sohiev  v.  Mass.  General  Hospital.,  3  Cushing, 
483. 

"The  cases  cited,  holding  that  the  legislature  have  power  to  change 
existing  joint  tenancies  into  tenancies  in  common,  and  thereby  destroy 
the  right  of  survivorship,  have  no  bearing  upon  the  question  under  con- 
sideration. Bornhaugh  v.  Bombaugh,  11  Sergeant  &  Rawle,  191  ; 
3Iiller  v.  Miller,  16  Mass.  61  ;  Holbrook  v.  Finney,  4  Id.  586.  Jacob- 
son  v.  Babcock,  16  N.  Y.  246,  holds  the  Act  (chap.  327,  Laws  of  1855), 
providing  for  the  sale  of  land  for  the  payment  of  taxes,  etc.,  constitu- 
tional and  valid.  Rockwell  v.  JSfearing,  35  N.  Y.  302,  Oampbell  v. 
Evans,  45  N.  Y.  356,  and  Happy  v.  Masher,  relate  to  other  questions, 
and  afford  no  light  upon  the  present  case.  Striker  v.  Molt,  28  N.  Y. 
82,  is  cited  by  counsel  to  show  that  the  heirs  of  the  children  of  the 
testator's  brother,  John,  have  no  such  interest  in  the  lands  as  can  be 
alienated  by  them.  That  case  arose  upon  a  will  which  took  effect  in 
1819,  before  the  passage  of  the  Revised  Statutes;  sections  9,  10,  13, 
14,  16,  25,  and  other  sections  of  article  1,  1  Stat,  at  Large,  670,  show 
that  these  heirs  had  an  estate  in  expectancy,  contingent  upon  the  death 
of  Mrs.  Brevoort  without  issue  surviving  ;  section  35  makes  such  estate 
descendiljle,  devisable,  and  aUenable,  in  the  same  manner  as  estates  in 
possession. 

"  It  is  insisted  by  the  counsel  for  the  respondent  that  the  Act  in  ques- 
tion should  be  sustained,  for  the  reason  that  some  of  the  heirs  are 
infants,  and  that  the  legislature  has  the  power  to  authorize  the  sale  of 
the  interests  of  these  infants.  But  this  does  not  confer  the  power  to 
authorize  a  sale  of  the  interests  of  the  adults  without  their  consent. 

"  It  is  further  insisted  that  although  the  legislature  may  not  have  the 
power  to  authorize  the  sale  of  an  estate  in  possession,  or  a  vested  estate 
in  expectancy  of  an  adult  without  his  consent,  yet  it  can  authorize  the 
sale  of  a  contingent  estate  in  expectancy.  I  can  see  no  reason  for  the 
distinction.  An  owner  sui  juris  is  equally  competent  to  determine  and 
manage  for  himself  in  the  one  case  as  in  the  other.  The  foundation  of 
the  power  of  the  legislature  to  act  in  behalf  of  any  owner  is  the  want  of 
capacity  to  act  for  himself,  and  this  reason  no  more  extends  to  the  case 
of  a  contingent  than  to  a  vested  expectant  estate.  The  question  as  to 
whether  the  interests  are  vested  or  contingent  is  not  material  and  will 
not  be  discussed. 

"It  is  obvious  that  the  fact  that  Henry  Brevoort  being  a  party  can 


CHAP,  v.]  STARR   V.   PEASE.  889 

have  no  bearing  upon  the  power  of  the  legislature  to  sell  without  their 
consent  the  interest  of  the  heirs  of  the  testator's  brother  John.  For  this 
purpose  he  no  more  represents,  and  has  no  more  power  to  affect  their 
rights  than  a  stranger  to  the  title.  He  may  bind  his  own  rights  by  his 
acts  but  not  those  of  others.  My  conclusion  is  that  the  deed  tendered 
would  not  have  conveyed  to  the  appellants  an  indefeasible  title  in  fee 
to  the  premises  purchased  bj'  them. 

"  The  judgment  must  therefore  be  reversed  and  judgment  given  for 
the  defendants  upon  the  demurrer  to  the  complaint." 

All  concur. 

Rapallo,  J.,  expresses  no  opinion  as  to  power  of  legislature  to  cut 
off  contingent  remainder-men  or  persons  not  in  being. 

Judgment  accordingly/.  ^ 

0A  © 


STARR  V.   PEASE.  \      o^j<^  ^ 


\      ^^-ll-bvjLiL  -^ 


Connecticut  Supreme  Court  of  Errors.     1831!^     J\^  oo|>T-^  '^ 

[8  Conn.  540.]  ^  AaW<-«-  ^^'^ 

This  was  an  action  of  ejectment ;  to  which  the  general  issue  was    (.»-ttx>c  *\T^^ 
pleaded.  g     u^  ^ 

The  case  was  as  follows.     In  the  year  1799,  the  plaintiff  became  the    ^^    ^^      ( 
wife  of  John  L.  Lewis.     In  1820,  George  Starr,  the  father  of  the  plain-  .  J^£,ii:iAi.  ^. 
tiff,  died,  seised  of  the  demanded  premises ;   and  immediately  there-      ^^^-^_ 
after,  the  fee  thereof  was  vested  in  the  plaintiff,  as  his  heir,  and  the 
right  of  possession  in  Lewis,  her  husband.      In  1826,  the   premises  oJa  aa^*^ 
were  taken   by  execution,  in  favor  of  Pease,  one  of  the  defendants,    ^JI(yAyji$jJ.  m 
against  Lewis  ;  and  his  right  therein  became  vested  in  Pease,  who,  with       .  (J    n 
the  other  defendants,  on  the  14th  of  Ma}-,  1820,  ousted  the  plaintiff,   "Ta^        "^j*^ 
and  took  possession.     Lewis  never  had  any  child  by  this  marriage,  and  _\^^jj^x  't*-'*-"* 
is  still  living.  h^ 

In  May,   1827,  the  plaintiff  preferred  her  petition   to  the  General    '' •'^-^     ( 

Assembly,  for  a  divorce,  which  was  granted  ;  and  the  following  Act  or   Xacl.  i^^^^j^^ 

decree  was  passed:  "Upon  the  petition  of  Martha  M.  Lewis,  repre-      ^       4—  ^^t 

senting  to  this  Assembly  that  she  was    lawfully  married  to   John  L.  CLaj^ 

Lewis,  on  the  23rd  day  of  September,  1799  ;  and  that,  on  or  about  the  _,-;^^^Xv<-   ^ 

loth  day  of  January,  1826,  the  said   John  L.   Lewis  indulged   such  fn^^^i- 

criminal  intimacies  with  one  Nanc}'  B.  Jones  as  amounted  to  adultery,     ^-'^ 

as  nearly  as  could  be,  without  the  actual  perpetration  of  the  crime  ;  and    ji  ^vwuiAAx*- 

praying  for  a  divorce  ;  as  per  petition  on  file :  And  the  said  allega-    jj.i     \LJ( 

tion,  after  hearing  of  the  petitioner  and  said  John  L.  Lewis,  with  their  J/i^  j 

witnesses  and  counsel,  being  found  true  :  -[f,^    Sji^U^ 

"  Besolred  bv  this  Assemblv,  that  the  said  Martha  L.  Lewis  be,  and  ^a 

"Iaaax    ^« 

1  See  Cooley,  Const.  Lira.  (6th  ed.)  115-128.     As  to  express  prohibitions  in  some     ^Jlf-l^^,   jla- 
constitutions,  lb.,  116,  note  1.  —  Ed.  "^-^^p-*^^ 

^.^^.  t^  ^^^  =<--  c^^^  ^^^;-lT^ 


(X^-<.^<^  X^    CKjue.y^a.\jC     TXce     JLt^KKKj-   -vro-t^^   O/vtvat 


cxk  cUXu^ 


6t    /P 


890 


STAT5R   V.    PEASE. 


t/v^X  A  /Xey^-Ji^X^ 


[CIIAP.  V. 


)-^-(o  Ax^'^^  she  hereb}'  is,  divorced  from  her  said  husband,  the  said  John  L.  Lewis  ; 
and  is  hereb}-  released  and  absolved  Ironi  all  obligations,  by  virtue  of 
said  marriage." 

The  case  was  reserved  for  the  advice  of  this  court,  upon  the  question, 
whether  the  plaintiff  was  entitled  to  a  recovery  ;  and  if  so,  to  what 


0        period  the  rents  and  profits  should  be  computed,  in  the  assessment  of 
iA^^^-i^^-  dama-es. 


jShermcoi  and  Barnes^  for  the  [jluintiff. 
N.  Smith  and  Storrs,  for  the  defendant. 

f^M^-^l  .cu^dn  Dagoett,  J.  ...  It  is  said,  however,  that  if  a  State  legislature  were 
tluJjcuA-  authorized  to  make  a  law  giving  power  to  some  triljunal  to  grant 
divorces,  still  they  cannot,  by  a  sovereign  Act,  dissolve  this  contract. 
This,  I  apprehend,  applies  only  to  the  fitness  of  the  exercise  of  the 
power  in  question,  and  not  to  the  constitutional  right.  It  will  be 
exceedingly  ditflcult  to  establish  that  Act  to  be  a  violation  of  the  Con- 
stitution of  the  United  States,  when  done  by  the  legislature  itself, 
which  would  not  be  so,  if  done  by  a  court,  in  obedience  to  law.  In  the 
case  of  Calder  &  ux.  v.  Bull  &  iix.^  3  Dall.  386,  the  Supreme  Court  of 
the  United  States  decided,  that  a  resolution  or  law  of  the  Legislature 
of  Connecticut  establishing  a  will,  was  not  a  violation  of  the  Constitu- 

^    oaX  tion  of  the  United  States. 

^.t/ivtc/tU/*^^*^ •^^  A  further  objection  is  urged  against  this  Act,  viz.^  that  by  the  new 
J  i  tCw^  Constitution  of  1818,  there  is  an  entire  separation  of  the  legislative  and 
judicial  departments,  and  that  the  legislature  can  now  pass  no  Act  or 
resolution,  not  clearh'  warranted  bj'  that  Constitution  ;  that  the  Con- 
stitution is  a  grant  of  power,  and  not  a  limitation  of  powers  already' 
possessed  ;  and  in  short,  that  there  is  no  reserved  power  in  the  legis- 
lature since  the  adoption  of  this  Constitution.  Precisel}'  the  opposite 
of  this  is  true.  From  the  settlement  of  the  State  there  have  been  cer- 
tain fundamental  rules,  b}-  which  power  has  been  exercised.  These 
rules  were  embodied  in  an  instrument,  called,  b}'  some,  a  constitution, 
—  by  others,  a  charter.  All  agree,  that  it  was  the  first  Constitution 
ever  made  in  Connecticut,  and  made  too,  by  the  people  themselves.^  It 
gave  very  extensive  powers  to  the  legislature,  and  left  too  much  (for 
it  left  everything  almost)  to  their  will.  The  Constitution  of  1818  pro- 
fessed to,  and,  in  fact,  did,  limit  that  will.  It  adopted  certain  general 
principles,  by  a  pi*eamble,  called  a  declaration  of  rights  :  provided  for 
the  election  and  appointment  of  certain  organs  of  the  government,  such 
as  the  legislative,  executive,  and  judicial  departments  ;  and  in^posed 
upon  them  certain  restraints.  It  found  the  State  sovereign  and  inde- 
pendent, with  a  legislative  power  capable  of  making  all  laws  necessar}' 
for  the  good  of  the  people,  not  forbidden  b}'  the  Constitution  of  the 
United  States,  nor  opposed  to  the  sound  maxims  of  legislation  ;  and  it 


VZ/t  Mvv<.<j  ] 


a  to   A 


1  There  appears  to  be  a  confusing  double  reference  here,  —  to  the  "  Fundamental 
Orders"  of  1638-1639  (1  Poore's  Charters,  249),  and  to  the  Charter  of  Charles  II.  (76. 
252).  — Ed. 


CHAP,  v.]  STARR  V.  PEASE.  891   ^''■'^'^ 

left   them   in   the  same  condition,  except  so  far  as  limitations  were     I7tx.c^t^    ^ 
provided.  1  /;  ^v^^xJiv 

There    is    now,  and    has   been,  a    law  in   force,  on   the  subject  of    'y      .  aj  {jL 
divorces.     This  law  was  passed  one  hundred  and  thirt}'  years  ago.     It   '^^^ 
provides  for  divorces  a  vinculo  matrimonii,  in  four  cases,  viz.,  adul-     '^  4,c*-i>*^*-'*^ 
tery,  fraudulent  contract,   wilful  desertion,  and  seven  years' absence,     /4i,(rvA/-<v\ , 
unheard  of    -The  law  has  remained  in  substance  the  same  as  it  was,     ^  , 

when  enacted,  in  1667.  During  all  this  period,  the  legislature  has  in-  //U-'^'^  ^^^'^ 
terfered,  like  the  Parliament  of  Great  Britain,  and  passed  special  Acts  ^i^^t^v*.  fz^^ 
of  divorce  a  vincido  matrimonii ;  and,  at  almost  every  session  since  the  /    tj^ 

Constitution  of  the  United  States  went  into  operation,  now  forty-two    ^'^     y/ 
j'ears,  and  for  tlie  thirteen  years  of  the  existence  of  the  Constitution  of  ^^w^-*-^*^ 
Connecticut,  sucli  Acts  have  been,  in  multiplied  cases,  passed,  and  sane-     /  f;)      j 
tioned,  by  the  constituted  authorities  of  our  State.  ^  < 

We  are  not  at  liberty  to  inquire  into  the  wisdom  of  our  existing  law  ^  fia  'Vt^ 
on  this  subject ;  nor  into  the  expediency  of  such  frequent  interference  j  .  ^  ^ 
by  the  legislature.     We  can  only  inquire  into  the  constitutionality  of  v 

the  Act  under  consideration.  The  power  is  not  prohibited,  either  by  p-^u/^-cUK^ 
the  Constitution  of  the  United  States,  or  by  that  of  this  State.  In  view  .^.cii^tctA^  , 
of  the  appalling  consequences  of  declaring  the  general  law  of  the  State, 
or  the  repeated  Acts  of  our  Legislature,  unconstitutional  and  void,  — 
consequences  easih'  conceived,  but  not  easil}'  expressed,  —  such  as  bas- 
tardizing the  issue  and  subjecting  the  parties  to  punishment  for  adul- 
tery, —  tlie  court  should  come  to  the  result  only  on  a  solemn  conviction 
that  their  oaths  of  office  and  these  Constitutions  imperiousl}^  demand 
it.  Feeling  myself  no  such  conviction,  I  cannot  pronounce  the  Act 
void. 

Another  question  was  reserved,  that  is,  shall  damages  be  recovered 
to  the  date  of  the  writ,  or  to  the  rendition  of  the  judgment?  It  is  under- 
stood, that  different  rules  have  prevailed  on  this  point.  I  think  it  most 
consonant  to  principle,  that  damages  should  be  given  only  to  the  date 
of  the  writ. 

I  would  therefore  advise  the  Superior  Court,  that  judgment  be  entered 
up  for  the  plaintiff,  with  damages  to  the  date  of  the  writ. 

HosMER,  Ch.  J.,  and  Bissell,  J.,  were  of  the  same  opinion. 

Peters,  J.,  said  he  could  not  give  an  unqualified  concurrence.  Upon 
general  principles,  he  had  no  doubt,  that  the  Act  of  Divorce  in  this  case, 
was  repugnant  to  the  Constitution  of  the  United  States,  as  impairing 
the  obligation  of  a  contract ;  and  that  it  was  void,  under  the  Constitu- 
tion of  this  State,  as  an  assumption  of  judicial  power  b}' the  legislature. 
But  in  view  of  the  decisions  in  analogous  cases  and  of  the  appalling  con- 
sequences of  nullifying  all  legislative  Acts  of  Divorce,  he  should  acquiesce 
in  the  opinion  of  the  court.  On  the  point  of  damages  he  concurred  with- 
out hesitation. 

1  See  Pratt  v.  Allen,  13  Conn.  124,  where  Williams,  J.,  quotes  and  sanctions  these 
doctrines ;  and  see  Trustees  of  Bishops'  Fund  v.  Rider,  13  Conu.  87,  for  tlie  general  sub- 
ject of  laws  impairing  contracts. 


892  WILKINS   V.   JEWETT.  ,[CHAP.  V. 

Williams,  J.,  having  been  retuined  as  counsel  for  Lewis,  on  the 
plaintiH''s  application  for  the  Act  of  Divorce,  declined  giving  any 
opinion  as  to  the  validity  of  that  Act.  He  concurred  as  to  the 
damages.  Judgment  to  be  given  for  the  plaintiff .^ 


-^^ 


WILKINS   V.  JEWETT. 
Supreme  Judicial  Court  of  Massachusetts.     1885. 

[139  l/ass.  29.] 

Morton,  C.  J.     This  is  an  action  to  recover  one  half  the  cost  of  a    ^ 
party  wall.     In  1873,  the  plaintiff  made  an  agreement  with  one  Mat-   ^ 
thews,  who  was  then  the  owner  of  the  equity  of  redemption  of  the 
defendant's  land,  that  tlie  plaintiff  might  place  one  half  of  the  division     i 
wall  of  his  house  on  the  defendant's  lot ;  and  that  Matthews  would  pay     4 
one  half  of  the  cost  of  the  wall  when  he  made  use  of  it. 
l/Tj  JU.—    The  defendant's  title  is  under  the  foreclosure  of  a  mortgage  exist- 
/'  ^         ing  at  the  time  this  agreement  was  made.     The  mortgagee  was  not  a 

/Vl  a^*twv^"party  to  the  agreement,  and  it  is  not  contended  that  the  defendant  is 
i.       (|/j  bound  by  it.     But  the  plaintiff  contends  that  the  defendant  is  liable  by     ^_,^"" 

r,  '^^^^  virtue  of"  the  Prov.  St.  of  1692-93  (5  W.  &  M.)  c.  13,  entitled,  "  An  Act  T^^ 
}. itu  >:>A.2'VM^  |-Qj,  i3^,iif]i„g  ^ith  stone  or  brick  in  the  town  of  Boston,  and  preventing  'is  ' 
XC  tA/^AX^  fii'e-"  1  Prov.  Laws  (State  ed.)  42.  This  statute  provided,  in  §  2,  that  ;^  ^ 
<  f  4^  "  every  person  building  as  aforesaid  with  brick  or  stone  shall  have  "^ 
"    liberty  to  set  half  his  partition  wall  in  his  neiglibor's  ground,  so  that  he 

t(A<.<vt-  ^f'^^eave  toothing  in  the  corners  of  such  walls  for  his  neighbor  to  adjoin 
t  cv/«/»^      unto,  who,  when  he  .shall  build,  such  neighbor  adjoining  shall  pay  for 
I  ,  ^   one  half  of  the  said  partition  wall,  so  far  as  it  shall  be  built  against. 

^%\    i.  ^  -^"^   ^^   ^^^®   ^^   ^"^'   difference    arising,    the    selectmen    shall    have 
K.k.  ^•^'    power  to  appoint  meet  persons  to  value  the  same  or  lay  out  the  line 
\J^jXk  ^  ^   between  such  neighbors."  ,^ 

ji         ^     y      We  are  of  opinion  that  this  provision  of  the  Provincial  Statutes  was 
_£.Uvt         Onever  in  force  in  the  Commonwealth  of  Massachusetts.     The  Constitu- 
,^^3^^\         tion  continued  in  force  all  laws  adopted,   used,  and  approved  in  tlie 
\         Province,  Colony,  or  State  of  Massachusetts  Bay,  and  usually  practised 
'aX       ^"  "^  ^'^®  courts  of  law,  until  altered  or  repealed  by  the  legislature, 
■^^^^^2/^  "  such  parts  only  excepted  as  are  repugnant  to  the  riglits  and  liberties 

'^'^^   ^^^^    contained  in  this  Constitution."     Const.  Mass.  c.  6,  art.  6. 
t   wv^rKnX*-,    The  provision  in  question  undertakes  to  deal  with  private  property, 
v&tX>Si\j.       and   to   authorize  one  man  to  appropriate  and  use  the    property  of 
I  4  XtirtAA^^'^^^^®'''  '"'ith»ut  his  consent.  -It  assumes  to  take  private  property  with- 

X^    X^   b»A-\    1  ggg  J  -gjgij   jyij^j.  ^  j)i^,   (g^lj  g^  )  j,g  6g5^  636  .  Cooley,  Const.  Lim.  (6tli  ed.)  128- 
j  I         133.    The  topic  here  considered  is  covered  in  several  States  by  express  constitutional 

^  A^t^  -    provisions.  — Ed. 


■-0 


/LA^vvacA   tfca.  Cxoc*^  i^<xAxt.  <r<v4^-      <^<Ar^<     <nA  TXm.   ^^U-O0tx>L--L  «^^ 

CHAr.  Y.I                                     TURNER   V.   NYE.                                                 893  ^  ^v^-*-- 

out  due  process  of  law,  and  without  compensation.     It  is  repugnant  to  ^w-<*^  z*-^^ 

the  fundamental  principles  declared  in  the  Declaration  of  Rights,  that  t^    oMj.^ 

the  property  of  the  subject  shall  not  be  appropriated,  even  for  public  -i\pM.  »^  ^ 

use,  without  paying  him  a  reasonable  compensation  therefor,  and  that  ^^0X4  -    ^ 

he  shall  not  be  deprived  of  his  property  but  by  the  judgment  of  his  .     .  <unu^7. 

peers,  or  the  law  of  the  land  ;  and  that,  in  all  controversies  concerning  .        ' 

property-,  he  shall  have  a  right  to  trial  by  jury.     Declaration  of  Rights,  ^'^^^  '. 

arts.  10.  12,  15.     Morse  v.  Stocher,  1  Allen,"  150.     Forster  v.  Forster,  ^=3-^  -tU*^; 

129  Mass.  559.  .^OXi^d  ^^i 

Undoubtedl}',  the  authority  of  the  legislature,  in  the  exercise  of  the  , ;  it^«,ti^ii-«. 

police  power,  is  very  broad.     This  power  is  founded  upon  the  princi-  -^  ^  ad^ 

pie  that  an}'  man  may  be  reasonably  restrained  in  the  use  of  his  prop-  /e     j-     oJ- 

ert}'  so  as  not  to  injure  others.      Watertoicn  v.  Mcujo^  109  Mass.  315,  t^     -f     ^^ 

318.     But  it  does  not  justify  authorizing  one  man  to  appropriate  and  /         * 

use  the  propert}'  of  another  without  his  consent  and  without  adequate  '*Z<"  '^>-^i^ 

compensation.  fit^Ai-i*^  ^'^ 

It  is  a  significant  fact,  that,  since  the  adoption  of  the  Constitution,  ,     /-^  ^j^ 

no  trace  can  be  found  of  an}'  legislative  or  judicial  sanction  of  the  pro-  ,  _ 

visions  of  the  Provincial  statute  upon  which  the  plaintiff  relies.     We  'tw^^  r>u^^ 

think  it  has  been  regarded  as  repugnant  to  the  principles  of  the  Consti-  Art  cOm^  ■ 

tution,  and  as  of  no  force.     It  follows  that  the  plaintiff  cannot  maintain  /'^ui^  a^  o-v 

this  action.                                                                ExcejJtions  overruled.  --txa.x^-^-'^^^ 

J.  D.  Thomson,  for  the  plaintiff,  cited   Qidnn  v.  Morse,  130  Mass.  ,  ^tala^; 

317,  321.  MI  '          ' 

B.  D.  Smith  and  G.  W.  Estahrook,  for  the  defendant. 


TURNER  V.   NYE.  \  4^,,  ^,X^l<^  jJi^L..^ 

Supreme  Judicial  Court  of  Massachusetts.     1891.      /O//      ^,^,    fiA/yu 

[154  Mass.  579.]  ^    ^j^f   3^^    ^ 

Bill  in  equity,  filed  in  the  Superior  Court  on  September  5,  1S89,  to  ,^^0^  <l/  ('^^ 

prevent  the  defendant  from  maintaining  a  dam  across  a  creek  flowing  '        '  a  \ 

into  Cataumet  Harbor  in  Falmouth,  in  the  county  of  Barnstable,  and  '^l^ 

from  flowing  the  plaintiffs'  land.      Hearing  before  Mason,   J.,   who  cUtf^     "^ 

ordered  the  bill  to  be  dismissed,  and,  after  an  appeal  had  been  taken  /^jl^ ■  tu^ 

by  the  plaintiffs  to  this  court,  made  the  following  report  of  the  facts.  Aa^^  ^ 

The  plaintiffs  were  the  owners  of  about  three  fourths  of  an  acre  of  j, 

marsh  land  adjoining  the  creek  above  referred  to ;  and  the  defendant  /i^^tn//^^ 

had  built  the  dam  across  the  creek  in  question,  under  the  provision  of  /(v.-^"^  o-*^ 

the  St.  of  1889,  c.  383, ^  and  by  the  license  of  the  Board  of  JIarbor  and  oJrv^t  G^  ^ 

1  This  statute,  entitlerl  "  An  Act  to  authorize  the  Flowage  of  Laud  for  the  Purposes      t-t    v^  ''^^ 
of  Fish  Culture,"  was  approved  on  May  28,  1889,  and  is  as  follows;  "Any  owner  or         v     /      /       , 
lessee  of  lands  or  flats  situated  in  the  countv  of  Barnstable,  appropriated  or  which 
he  desires  to  appropriate  to  the  culture  of  useful  fishes,  may  erect  and  maintain  a  dam 


\^^^H 


.jLj\j^fjytLi     Lr/v-     /->      A.  ^A       ^^A^   /htAjuiyO-^  AA/<^     yyCL-^^t^ 


(I     TURNER  (k.   NYE.     ^'  (/  [CIIAP.  V. 


■niAA/caX-iu.' 

dtU 


Land  Commissioners,  so  as  to  flow  about  sixt}-  acres  of  liis  own  land 
and  that  of  the  plaintiffs,  so  that  they  were  deprived  of  tlie  use  of  it. 
Tlie  dam  was  partially  constructed,  and  the  plaintiffs'  laud  a[)preciably 
flowed,  but  no  substantial  damage  was  done  before  the  passage  ot  that 
statute. 

This  dam  Avas  erected  and  is  maintained  for  the  purpose  of  creating 
and  rai.siug  a  pond  for  the  culture  of  useful  fishes,  and  the  pond  rai sed 
by  the  dam  is  well  stocked  with  trout.  The  immediate  purijose  or  in- 
tention of  the  defendant  and  those  interested  with  him  was  not  to  per- 
form a  public  service,  but  to  engage  in  the  culture  of  useful  fishes  for 
their  own  personal  pleasure  and  i^rofit,  and  the  |)lcasure  and  profit  of 
^/\j)uuijt^^^^  particular  ijcrsons  to  whom  they  should  sell  rights  to  fish  in  the  pond. 
It  was  not  their  purpose  to  supply  the  market  with  such  fishes,  nor  to 
supply  them  to  the  public  by  an}'  means,  direct  or  indirect.  The  land 
of  the  plaintiflTs  had  small  market  vahie  for  any  use  to  which  it  could 
be  applied  other  than  that  for  which  it  is  now  used  by  means  of  the 
defendant's  dam.  There  was  at  the  time  of  the  passage  of  the  Act, 
and  is  now,  much  land  in  Barnstable  County-  similarl}-  situated,  having 
small  market  value  for  any  purpose  to  which  it  can  be  applied  by  its 
separate  owners,  which  would  be  enhanced  in  value  if  it  were  shown  h\ 
successful  experiment  that  such  land  could  be  profitably  used  for  the 


4 


■f^^  K/i-t-  gyi^iyj^t^JQf,  Qf  useful  fishes  under  the  powers  conferred  by  the  Act. 


The  case  was  argued  at  the  bar  in  March,  1891,  and  afterwards,  in 
September,  was  submitted  on  the  briefs  to  all  the  judges. 

A.  M.  Goodspeed,  for  the  plaintiffs. 

J.  M.  Hall,  for  the  defendant. 

Morton,  J.  ^The  plaintiffs  do  not  rely  upon  the  fact  that  the  dam 
was  partially  constructed  by  the  defendant  before  the  passage  of  the  St. 
of  1889,  c.  383.  ^ The  plaintiffs  could  not  avail  themselves  of  that  fact 
in  this  suit.  If  the  dam  is  maintainable  under  that  statute,  the  plain- 
tiffs wou Id  not  be  entitled  to  its  abatement  although  it  was  part ly 
erected  without  right.  Ware  v.  Eegenfs  .Canal  Co.,  3  DeG.  &  J.  212. 
And  if  thev  are  entitled  to  damages  for  the  technical  violation  of  tliei r 
rights,  their  remedy  is  at  law.  M'dslihuni  v.  Miller,  117  Mass.  376. 
Nor  do  they  rely  upon  the  point  suggested  by  the  defendant,  that  the 
operation  of  the  Act  is  confined,  as  it  clearly  may  be,  to  Barnstable 
Count}'.     Coole}',  Const.  Lim.  390. 

The  plaintiffs  contend  that  the  St.  of  1889,  c.  383,  under  which  the 
court  found  that  the  dam  was  completc-d  and  is  maintained  by  the  de- 
fendant, is  unconstitutional,  because,  first,  it  purports  to  authorize  the 


across  any  stream  for  the  purpose  of  creating  or  raising  a  pond  for  such  fish  culture, 
upon  the  terms  and  conditions  and  sul)ject  to  the  regulations  contained  in  chapter  one 
hundred  and  ninety  of  the  Public  Statutes,  so  far  as  the  same  are  properly  applicable 
in  such  cases .  provided,  however,  that  nothing  herein  contained  shall  authorize  the 
erection  or  maintenance  of  a  dam  across  any  navigable  stream  within  said  county  Avith- 
.  out  a  license  obtained  therefor  from  the  Board  of  Harbor  and  Land  Commissioners,  in 

JMmM^     accordance  with  and  subject  to  the  provisions   of  chapter  nineteen   of  the  Public 


M\^i</ 


irA.     Statutes.' 


oMaAX. 


^-x^(^M.    C>'> 


CHAP,  v.] 


TURNER   V.    NYE.  895  /t-^-^^-^:-'^^'^-'^-^ 

taking;  of  i)rivate  property  for  a  use  which  is  not  public  in  its  nature,     yxjc_ji4jUt  a^ 
and  secondly,  if  the  statute  is  constitiitional,  the  defendant  has  not  Q 

brou.oht  himself  within  it.  — U-^i , 

But  in  regard  to  the  first  point  we  think  the  plaintiffs  misapprehend    Cn^^iu^^*^' 


the  constitutional  provision  which  applies  to  the  Act  in  question.  The 
statute  was  not  an  exercise  on  the  part  of  the  legislature  of  the  right 
of  eminent  domain,  but  was  enacted  under  the  |)ro vision  which  gives 
it  power  to  '^make,  ordain,  and  establish,  all  manner  of  wholesome 
and  reasonable  orders,  laws,  statutes,  and  ordinances,  .  .  .  so  as  the 
same  be  not  repugnant  or  contrary  to  this  Constitution,  as  they  shall 
judge  to  be  for  the  good  and  welfare  of  this  Commonwealth,  and  for 
the  government  and  ordering  thereof,  and  of  the  subjects  of  the 
same."     Const.  Mass.,  Part  2,,  c.  1,  art.  4.     It  is  upon  this  provision 


that  the  Mill  Acts  have  been  placed  finally  in  this  State,  after  what     /  ^^  ^   ^zm, 
appear  at  times  to  have  been  somewhat  conflicting  views.     Boston  &     ^ 


Roxbury  Mill  Co.  v.  Newman,  12  Pick.  467  ;  Murdoclz  v.  Stickney.,  8 
Gush.  113;  Hazen  v.  Essex  Co.,  12  Cush.  475;  Talbot  v.  Hudson,  16 
Gray,  417;  Loivell  v.  Boston,  111  Mass.  454.  It  may  be  doubted 
whether,  as  new  legislation,  they  could  be  sustained  as  an  exercise  of 
the  right  of  eminent  domain.  Murdoch  v.  Sticknei/,  8  Cush.  113  ; 
Lomell  Y.  Boston,  111  Mass.  454;  Cooley,  Const.  Lim.  534;  Jordan 
V.  Woodward.,  40  Maine,  317. 

Upon  this  provision  also  stand  the  Cranberry  Act,  so  called  (St. 
1866,  c.  206)  ;  the  Act'in  regard  to  draining  meadows,  swamps,  marshes, 
beaches,  and  low  lands,  with  its  authority  to  commissioners  to  open  the 
floodgates  of  a  mill,  or  to  erect  a  temporary  dam  on  the  lands  of 
anothei:  person,  and  assess  the  damages  upon  the  proprietors  (Pub.  Sts. 
c.  189  ;  see  Wiirts  v.  Hoagland,  114  U.  S.  606)  ;  the  Act  in  regard  to 
proprietors  of  wharves,  general  fields,  and  lands  Ijing  in  common,  with 
the  control  which  it  gives  to  a  certain  proportion  in  numlier  and 
interest  over  the  propert}'  of  the  rest  (Pub.  Sts.  c.  Ill)  ;  and  the  Act 
in  regard  to  partition,  by  which  one  co-tenant  ma}''  be  compelled  to  take 
money  instead  of  land,  or  to  give  up  for  a  time  the  occupation  and 
enjoyment  to  another.  Pub.  Sts.  c.  178.  The  Mill  Acts,  and  these  and 
other  like  statutes  (of  which  various  illustrations  might  be  given),  rest 
upon  the  principle  that  property  may  be  so  situated  or  of  such  a  char- 
acter that  the  absolute  right  of  the  individual  owner  to  a  certain  extent 
must  yield  to  or  be  modified  by  corresponding  rights  on  the  part  of 
other  owners,  or  by  what  is  deemed  on  the  whole  to  be  for  the  public 
welfare.  See  Commomvealthw.  Tewksbitry,  11  Met.  55  ;  Covwion wealth 
V.  Alger,  7  Gush.  53  ;  Denham  v.  County  Commissioners,  108  Mass. 
202  ;    Wurts  v.  Hoagland,  114  U.  S.  606. 

The  provision  above  quoted  does  not  authorize  the  legislature  to 
take  property  from  one  person  and  give  it  to  another,  nor  to  take  pri- 
vate property  for  public  uses  without  compensation,  nor  wantonly  to 
interfere  with  private  rights.  These  are  always  to  be  carefully  guarded 
and  protected.    But  of  necessity  cases  will  arise  where  there  will  or 

'^      U  tU  pUJ:.    ^.vud.  ^U-tL.  AivtU^^  Hy^     ^-^  A^f^ 


,Ui^  J  ^ 

,iJt  ch<. 


/7 


.L-       U 


A 


Li/i 


r  V 


^;^^  896  TURNER   V.    NYE.  "       [CIIAP.  V. 

^^ti^i-^  may  be  a  conflict  of  interests  in  the  use  or  disposition  of  property,  and 

■^    ^--j^  Cv        questions  may  and  will  come  up  affecting  the  public  welfare  in  regard 

to  the  use  which  shall  or  shall  not  be  permitted  of  certain  property. 
\J,i^'-%,  j|.  jg  j-Qj.  ^jjg  legislature  in  such  instances,  under  the  power  thus  con- 

wvianjL ,        ferred  upon  it,  and  with  due  regard  to  private  rights,  to  enact  the  ne- 
cessary' laws.     It  is  for  the  public  good  that  swamps  and  waste  lands 
c^  tATn^,      should  be  reclaimed  and  made  i)roductive.     Jt  is  also  for  tlic  public 
-L    I  good  that  streams  should  l)e  used  to  operate  mills,  to  raise  cranberries, 

,  and  to  cultivate  useful  fishes.     If  private  rights  appear  to  some  extent 

^•^(T.^^  to  be  invaded,  that  is  inseparable  from  the  nature  of  the  use  authoiMzed, 

,  without  which  tlie  .streams  could  not  be  advantageously  or  profitably 

used,  and  compensation  is  ijrovided  for  any  iujmT  that  may  be  done. 
■VY-  A-*^^*^  The  character  of  the  |)roperty  and  the  resulting  general  good  are 
i\    r\    -t  '  J    deemed  sufficient  to  justify  the  action  of  the    legislature. 

It  is  doubtful,  however,  whether  any  propert}'  of  the  plaintiff  is  taken 

^M  A/VvM-        or  an}-  of  his  rights  are  invaded.     The  statute  in  question  authorizes 

//  ir     *^^  erection  and  maintenance  of  a  dam  across  an}-  stream  for  the  pur- 

X   vxt^  p^gg  ^^  creating  or  raising  a  pond  for  the  culture  of  useful  fishes.     It 

^c\    ia,x^c(^       is  to  be  erected  "  upon  the  terms  and  conditions  and  subject  to  the 

.i_regulations  contained  in  chapter  one  hundred  and  ninety  of  the  Public 


.^^ 


-ti<j4AJl 


Statutes  so  far  as  the  same  are  properl}'  applicable  in  such  cases."    The 
chapter  referred  to  is  what  is  known  as  the  Mill  Act.    Under  that  it  has 


/v€    oCt:<^'     been  held  that  the  right  to  erect  and  maintain  a  dam  to  raise  water  for 


working  a  mill  does  not  give  to  the  mill-owner  any  right  in  the  land 
flowed,  or  take  away  any  right  from  the  land-owner.  The  latter  may 
embank  his  land  and  thus  stop  any  flownge  of  it,  or,  if  he  chooses,  he 
may  collect  of  the  mill-owner  damages  in  gross  or  annualh'  for  the 
flowage.  Until  the  land-owner  manifests  his  election  to  claim  damages, 
be  cannot  be  compelled  by  the  mill-owner  to  submit  his  land  to  be 
flowed,  and  until  then  the  only  right  which  the  mill-owner  has  as  be- 
tween himself  and  the  land-owner  is  to  maintain  his  dam  without  liabilit}' 
to  the  land-owner  for  damages  in  an  action  at  law.  L,  "While  the  land- 
owner may  protect  his  land  from  flowage,  he  cannot,  of  course, 
wantonly  interfere  with  the  right  which  the  statute  gives  to  the 
mill-owner  to  maintain  his  dam.  /  Williams  v.  Nelson,  23  Pick.  141 ; 
Mardock  v.  Sticknei/,8  Cush.  113  ;  Storin  y.  3Ianchaug  Co.,  13  Allen, 
10;  Paine  v.  Woods,  108  Mass.  160;  Loivell  v.  Boston,  111  Mass. 
454;  Head  v.  Amoskear/  Manvf.  Co.,  113  U.  S.  9. 

There  would  seem  to  be  nothing  in  the  purpose  for  which  the  right  is 
given  to  erect  and  maintain  a  dam  to  create  a  pond  for  the  culture  of  use- 
ful fishes  that  should  give  to  the  party  erecting  or  maintaining  such  a  dam 
any  greater  rights  over  the  lands  flowed  by  it  than  a  mill-owner  would 
have  over  lands  flowed  by  the  dam  maintained  by  him.  Without  an}'- 
thing  more,  we  should  be  slow  to  infer  from  a  power  to  maintain  a  dam 
to  create  a  pond  for  the  culture  of  useful  fishes  an}'  greater  rights  over 
lands  flowed  than  from  a  power  to  maintain  a  dam  to  raise  water  for 
working  a  mill. 


CHAP,  v.]  TURNER   V.   NYE.  897 

It  appears  from  the  facts  found  in  the  present  ease  that  the  defend- 
ant's dam  rtows  about  sixty  acres,  all  of  which,  with  the  exception  of 
about  tliree- fourths  of  an  acre  belonging  to  the  plaintiffs,  is  owned  by 
the  defendant.  It  is  also  found  that  the  land  of  tiie  plaintiffs  was  of 
small  market  value  for  any  other  use  to  which  it  could  be  applied,  and 
that  there  is  "  much  land  in  Barnstable  County  siinilarl}'  situated,  having 
small  market  value  for  any  purpose  to  which  it  can  be  applied  by  its 
separate  owners,  which  would  be  enhanced  in  value  if  it  were  shown  by 
successful  experiment  that  such  land  could  be  profitably  used  for  the 
cultivation  of  useful  fishes  under  the  powers  conferred  b}' "  the  Act  in 
question.  In  view  of  these  facts,  and  for  the  reasons  above  stated,  we 
think  that  the  claim  of  the  plaintiffs  that  the  Act  is  unconstitutional 
cannot  be  maintained.  We  come  to  this  conclusion  the  more  readily, 
because  a  contrary  result  would  obliuc  us,  we  fear,  to  hold,  if  tl^ie 
question  were  directly  presented  to  us,  that  the  Cranberry  Act,  under 
w hich  a  large  and  profitable  industry  has  grown  up,  was  also  unconsti- 
tutional. Although  several  cases  under  that  Act  have  been  before  this 
court,  no  doubt  as  to  its  constitutionality  seems  to  have  been  suggested. 
Bearse  v.  Perr;/,  117  Mass.  211  ;  Hinckley  v.  Nlckerson,  117  Mass. 
213;  Blackwell  v.  Phinney,  126  Mass.  458;  Howes  v.  Grush,  131 
Mass.  207. 

The  plaintiffs  further  contend,  that,  if  the  Act  is  constitutional,  the 
defendant  has  not  brought  himself  within  its  scope,  because  it  does 
not  appear  that  any  direct  or  positive  benefit  will  be  derived  bv  the 
public  from  the  defendant's  acts,  and  because  the  dam  has  been  erected 
and  will  be  maintained  by  him  wholly  for  his  own  personal  pleasure, 
profit  and  advantage.  But  the  court  has  found  that  '^  the  dam  was 
erected  and  is  maintained  for  the  purpose  of  creating  and  raising  a 
pond  for  the  culfui'e  of  useful  fishes,  and  the  pond  raised  by  the  dam 
is  weTT stocked  with  trout."  ^This  'finding  brings  the  case  within  the 
exact  words  of  the  statute.N  It  is  not  necessary  that  it  should  also 
a^i^pear  that  the  object  of  the  defendant  was  to  benefit  the  public.  The 
legislature  deemed  the  culture  of  useful  fishes  for  any  purpose  beneficial, 
and  passed  this  statute,  as  it  did  the  Mill  Acts,  for  the  purpose  of  en- 
abling a  lessee  or  owner  of  lands  or  flats  to  raise  a  dam  across  a 
s  t  re  a  m  so  as  to  engage  in  that  occupation  and  use  the  stream  withou  t 
the  liability  to  constant  lawsuits  from  persons  whose  lands  miojht 
be  flowed.  No  doubt  the  defendant's  object  is  his  own  personal 
pleasure,  profit  and  advantage.  ^  But  if  the  enterprise  is  successful, 
the  pubjic  will  be  benefited  by  the  introduction  and  building  up  of  a 
new  and  profitable  industry,  and  lands  now  of  little  value  and  not 
available  for  any  other  use  will  be  made  valuable.  We  think  this  con- 
tention must  also  be  overruled. 

The  result  is  that,  in  the  opinion  of  a  majoritj'  of  the  court,  the 
decree  appealed  from  must  be  Affirmed. 

FiELD^  C.  J.      My  objections  to  the  constitutionality  of  the  St.  of 
VOL.  I. —57 


898 


TURNER   V.    NYE. 


[chap.  V. 


1889,  c.  383,  briefly  stated,  are  as  follows.  Tiie  i^urpose  of  the 
statute  is  not  public.  Cultivating  fish  for  one's  private  use  no  more 
concerns  the  public  than  eultivatin";  corn  or  other  articles  of  food.  The 
taking  for  such  a  purpose  of  the  land  of  another  l)v  overflowing  it 
cannot  be  justified  as  an  exercise  of  the  ri.^ht  of  eniincut  domain. 
Notwithstanding  what  has  been  said  in  some  of  our  decisions,  over- 
flowing a  person's  lanirjDtnout  JhislcpiTsent  is  a"  taking  of  property 
while  the  overflow  continues^  and  is  a  tort  which_would  be  enjoined  un- 
less the  statutesluTnioinzec^  it.  The  Mill  Acts  were  originally  sustained 
oiTtlle^ground  that  the  erection  of  water-mills  was  for  the  public  bene- 
fit, and  this  was  strictly  true  of  grist-mills  and  saw-mills,  if  the  |)ublic 
Jta  n^^uCti.  had  the  right  to  have  their  grain  ground  and  their  logs  sawed  at  the 
>.*,/ ■!/■//-    mills.     The  Acts,  however,  extended  to  mills  of  all  kinds,  in  most  of 


(r<-t4.  ~ 


which  the  interests  of  the  public  were  less  direct;  still,  the  erection  of 
v/ater-mills.  when  water  was  the  only  available  source  of  power,  was 
always  of  public  concern  sufficient  to  justify  the  damming  of  streams, 
if  compensation  were  paid  to  the  persons  whose  lands  were  overflowed. 
Mill  Acts  were  in  force  long  before  the  adoption  of  the  Constitution, 
and  it  could  not  properly  be  held  that  it  was  the  intention  of  that  in- 
strument to  render  them  void.  But  the  damming  of  the  waters  of  a 
running  stream,  so  that  the  lands  of  the  \\\)\)^x  proprietors  are  over- 
flowed, is  something  more  than  the  reasonable  use  of  the  water,  wliicl i 
every  proprietor  is  entitled  to  make,  as  it  runs  through  his  land,  without 
paving  any  compensation  to  the  upper  or  lower  ])roi)rietors.  It  has 
never  been  supposed  that  the  Mill  Acts  would  be  sustained  if  they  con- 
tained no  provision  for  compensation  to  the  persons  whose  lands  were 
flowed.  As  was  said  in  Isele  v.  Arlington  Five  Gents  Savings  Bank, 
135  Mass.  142,  144,  "The  right  to  flow  water  back  upon  the  land  of 
another  is  not  the  less  an  easement  in  its  nature  because  such  other 
may  lawfully  wall  or  dike  against  it.  Such  right  on  his  part  diminishes 
the  extent  of  the  easement,  but  does  not  alter  its  character."  Kenison 
V.  Arlington,  144  Mass.  456. 

The  statute  in  question  cannot  be  sustained  on  the  ground  that  it 
authorizes  the  improvement  of  property  of  different  owners  for  the 
common  benefit  of  the  owners  or  for  the  iniblic  benefit,  or  on  the 
ground  that  it  authorizes  the  improvement  of  property  which  otherwise 

^^    ^^^^^fc>^^would  be  practicallv  useless.     It  is  not  confined  to  useless  or  swampy 
ty^Ljj,^  lands,  or  to  lands  of  any  particular  description.  /Tlie  constitutionality 

y^'^^'^r^^  of  the  statute  must  be  determined  by  its  meaning,  andnotTy  the 

ri   AA^A^Avi  special  facts  of  the  present  case 


(] 


It  is  possil)le  under  the  statute  that 
any  owner  or  lessee  of  lands  or  flats  situated  in  Barnstable  County  for 
the  purpose  of  making  a  fish-pond  for  his  own  private  use  and  pleasure, 
may  overflow  the  greater  part  of  the  arable  land  in  the  county,  with 
the  buildings  upon  it.  None  of  the  precedents  cited  seem  to  me  to  go 
as  far  as  the  opinion  of  the  court  in  this  case,  and  I  am  compelled  to 
think  the  statute  unconstitutional. 


CHAP,  v.]  COMMONWEALTH   V.    GILBERT.  899       

COMMONWEALTH  v.   GILBERT.    \      ^c^i7iifx{t .     G-r^^^^-^^ 
Supreme  Judicial  Court  of  Massachusetts.    1S93.  tLod.   ti*^   Ju^uiAA^ 

[160  Mass.  157.]  ■M^<^  AU    ^^^^^^"^^ 

Report  from  Superior  Court,  Plymouth  County  ;  Edgar  J.  Sherman,  .  : 

Judge.  '  -  ,<Jxlt^  71^^ 

"W.alter  L.  Gilbert  was  convicted  of  unlawfully  selling  a  trout,  and  oa^^  ^^^^^^ 
the  case  was  rei:)ortcd  for  the  determination  of  the  Supreme  Judicial  aataJi  ^  "^ 
Court.     Verdict  ordered  to  stand.  (J  J^aI 

The  indictment  eharocd  tliat  defendant,  on  the  29th  da}'  of  March  in  ^ 

the  j-ear  1803,  did  liave  in  his  possession,  and  did  offer  and  expose  for""-^  "^  ^^ 
sale,  and  did  sell,  one  trout,  said  trout  havino;  been  taken  in  this  Com- 
monwealth, and  not  then  and  there  being  alive.  To  this  indictment 
defendant  pleaded  not  guilt}-.  It  was  admitted,  however,  that  the  de- 
fendant did,  on  the  day  charged  in  the  complaint,  sell  one  dead  trout, 
as  therein  alleged.  The  defendant  claimed  that  said  trout  was  one 
which  had  been  artificially  raised,  propagated,  and  maintained  by  him, 
and  offered  to  prove  the  facts  as  to  the  method  of  hatching,  raisiug, 
and  maintaining  said  trout,  which  also  applied  to  all  other  trout  owned  .  ,  i-t 
by  him,  claiming  that,  if  he  did  prove  these  facts  to  the  satisfaction  of  -C*'-^^^^  ."T/ 
the  jury,  he  was  entitled  to  an  acquittal,  on  the  ground  that  the  statute  ajcO-^^r'-^-^-^ 
against  selling  trout  between  certain  dates  applied  only  to  wild  trout,  Ljj^L a. ^  ^' 
or  trout  that  are  hatched  and  grow  in  a  state  of  nature,  without  artifi-  (j  ^  ^  ^^ 
cial  aid  in  propagating  and   maintaining  them.     The  Commonwealth  ***^  ^-^ 

did  not  contest  the  truth  of  the  facts  offered  to  be  proved  by  the  de-^t^*-*^"'^     ^ 
fendant,    but   claimed  that  such  evidence   would  furnish    no   defence   ^  /i/u^tW"  '^ 
against  the  indictment,  and  was   inadmissible   for  that  purpose.     The  */tW^ 

presiding  judge  so  ruled,  and  excluded  the  evidence.     The  defendant        ,      . 
also  asked  the  court  to  rule  that  the  statutes  of  this  Commonwealth -'Twt^'^* 
provide  no  penalty  against  a  person  for  having  in  his  possession  and  "iJ ^(^A   ^^ 
offering  and  exposing  for  sale  and  selling  dead  brook  trout  artificialh     >   ^    ^i^CiA^ 
cultivated,  propagated,  and  maintained  b}'  him  in  this  Commonwealth.  e   aJ. 

If    the    statutes   of  this   Commonwealth    impose    any    pen  alt}'    upon'^U^'*'      y 
the  defendant  for  having  in  his  possession  and  offering  and  exposing  /xajuC/I^   h\ 
for  sale  and  selling  dead  brook  trout  which  were  kept  and  confined  in  ^j^^^^^A  ■^  '^ 
artificial  ponds  upon  his  own  premises,  and  which  were  artificially  cul-  ^XA^tuJjOih 

tivated,   propagated,   and   maintained   in   the    manner   the   defendant        , 
offered  to  prove  that  his   were   confined,  cultivated,  propagated,   and   _^   *  -  j j^^jJ 
maintained,  then  the  statute,  so  far  as  it  ai)plics  or  relates  to  such  JM-^f^^    ft 

trout,  is  unconstitutionaL The  court  refused  to  give  the  rulings  as  f^JUfiA^'^ 

requested.  e^vtS  ■ijr^ 

Eohert    0.   Harris,  for  the  Commonwealth.      T.    E.    Graver,  for  L. 

defendant.  ^  ^j^r^vm^ 

Allen,  J.     There   are  two  questions  in  this  case,  namely,  whether   ,a^    tv>x 
the  defendant's  act  was  within  the  true  meaning  of  the  .statute  forbid-  yyt^^     ^-^ 
dins  the  sale  of  trout ;   and,  if  so,  whether  the  statute  is  constitutional.  /^^^//o^TH^^^ 


M 


^^<M.iA,^,tc^iuUl     yW&fi^^    .^tU    duztt      >^.t^    ^^.f^iut^aJL' 
't'iyL^r^i/Uvi^  900  COMMOXAVEALTH    V.   GILBERT.  [CHAP.  V. 

1  1.  The  defendant  contends  that  the  penalty  imposed  by  Pub.  St.  c. 

jzA^yviA.^^        91^  §  53^  for  selling  trout,  does  not  extend  to  the  sale  of  trout  which 

CaJXi-^'^'     tiave  been   artilicially   propagated    and    maintained.     "Whatever   force 

,7        this  contention  might  have  if  section  53  stood  alone,  a  reference  to 

^  \  If"     *■ "     otlier  sections  of  the  same  chapter,  and  to  the  histoi  y  of  this  legislation, 

/     •  makes  it  clear  that  such  trout  are  not  exempted.  .  .  .  The  object  of  all 

^  these  statutes  was  to  protect  and  preserve  the  trout.     The  same  statute 

I  /ydUM^       which  flrst  forbade  their  sale  also  contained  the  provisions  upon  which 

J/.^/      the  present  statute  is  founded,  to  encourage  their  artificial  propagation 

^^  0  and  maintenance.     In  order  to  make  the  protection  of  the  trout  more 

ri.    K        effectual,  it  was  deemed  necessary  by  the  legislature  to  ])uiiish  the  sale, 
.         during  the  close  season,    of  all  trout  exce|)t  those  which  are   alive. 
}'^    This  was  proba))lv  on  account  of  the  difliculty  in  distinguishing  between 
\  tcu  [rje^^-  trout  which  had  been  artificially  iJropagated  or  maintained  and  other 
/}  f-^         trout.     On  the  constiuction  contended  for  by  the  defendant,  the  law 
.0-  could  not  be  so  well  enforced.     In  view  of  the  provisions  of  section  2G, 

f^^<iX«^u.^     jt  seems  to  us  plain  that  the  penalty  imposed  b}-  section  53  extends  to 
artificially  propagated  trout. 

2.  Nor  have  we  any  doubt  that  the  statute  is  constitutional.     The 

importance  of  preserving  from  extinction  or  undue_dej2]etion  the  trout 

and  other  useful  fishes  in  the  watei'softlie_Common  wealth  has  beeii 

recognized  andjllustrated  in  man}-  familiar  statutes  and  decisions  from 

X^-iM-zO^y^   ^^  early  time.     Such  protection  has   always  been    deemed  to  be    foi' 

/         _    ^    ^nbe  good  and  welfare  of  this  Commonwealth,"  and  the  legislature  may 

ciLoMyUi/^     pass  reasonable  laws  to  promote  it.     Such  laws  arc  not  to  be  held  un- 

/A/        reasonable  because  owners  of  property  may  thereby  to  some  extent  b e 

restricted  in  its  use.  '  It  has  often  been  declared   that  all  property  is 

c  CMut  acquired  and  held  under  the  tacit  condition  that  it  shall  not  l)c  so  used 

/^_       as  to  destroy  or  greatly  impair  the  public  rights  and  interests  of  the 

^^       -^       community.     Many  illustrations  might  be  cited  where  such  restrictions 

^T_Xi  aaa/M-      ^^^  ^j^^  ^^^^  ^^  property  have  been  held  valid.     But  the  cases  are  familiar. 

n       ~A  The  limitation  is  that  the  restrictions  must  not  be  unreasonable.     The 

■^^-^'^l*^'^'      legislature  may  "  make,  ordain  and  establish  all  manner  of  wholesome 

^  .      .  +■        and  reasonable  orders,  laws,  statutes,  and  ordinances,  directions  and 

•/     C  instructions,  either  with  penalties  or  without ;  so  as  the  same  be  not 

Ucif-  cOrC-i       repugnant  to  this  Constitution,  as  they  shall  judge  to  be  for  the  good 

JxfCA^'^^  and  welfare  of  this  Commonwealth."     Const,  c.  1 ,  §  1 ,  art.  4.     The  legis- 

^    (7         ,        lature  may  forbid  the  catching  or  selling  of  useful  fishes  during  rcason- 

-*^  -  ^'^    able  close  seasons  established  for  them  ;  and  to  extend  the  prohibition  so 

\jtu   'pM/i-    ^s  to  include  such  as  have  been  artificially  propagated  or  maintained  is 

i!)  not  ditTerent  in  principle  from  legislation  forbidding  persons  from  catch- 

'^  -  ing  fish    in    streams  running  through  their  own  lands.      The  statute 

under  consideration  falls  within  this  power.     Com.  v.  Look,  108  Mass. 

452  ;  Com.  v.  Alger,  7  Cush.  53,  84,  85  ;   Com.  v.  Tewlshury,  11  Mete. 

(Mass.)  55,  57  ;  Cole  v.  East  ham,  133  Mass.  65;  BJdeout  v.  Knox,  148 

Mass.  368,  19  N.  E.  390;  Blair  v.  Forehand,  100  Mass.  136;  Pheljys 

V.  Raceij,  60  N.  Y.  10. 

Verdict  to  stand. 


CHAP,  v.] 


OPINION    OF   THE   JUSTICES. 


901 

- 1 


OPINION   OF  THE  JUSTICES 

Of  the  Supreme  Jldicial  Court  of  Massachusetts.     1890. 

1150  Mass.  592.] 

The  following  order  was  adopted  by  the  House  of  Representatives 
on  Ma}^  22,  1890,  and  thereupon  transmitted  to  the  Justices  of  the 
Supreme  Judicial  Court,  who,  on  May  27,  1890,  returned  the  opinion 
which  is  subjoined. 

Ordered,  That  the  opinion  of  the  Justices  of  the  Supreme  Judicial 
Court  be  required  upon  the  following  important  questions  of  law  :  — 

First.  Is  it  within  the  constitutional  power  of  the  legislature  to 
enact  a  law  conferring  upon  cities  and  towns  within  this  Commonwealth 
the  power  to  manufacture  gas  or  electric  light  for  use  in  tlie  public 
streets  and  buildings  of  such  cities  and  towns? 

Second.  Is  it  within  the  constitutional  power  of  the  legislature  to 
enact  a  law  conferring  upon  a  city  or  town  within  this  Commonwealth 
the  power  to  manufacture  gas  or  electric  light  for  the  purpose  of  selling 
the  same  to  its  own  citizens? 

And  be  it  further  ordered.  That  the  Justices  of  the  Supreme  Judicial 
Court  be  informed  that  the  foregoing  questions  are  propountled  with  a 
view  to  further  legislation  upon  the  subjects  therein  referred  to,  and 
that,  for  their  more  particular  information,  a  copj^  of  House  Document 
No.  436,  being  a  bill  now  pending  before  this  House,  and  upon  the  sub- 
ject-matter of  which  the  foregoing  questions  are  propounded,  be  trans- 
mitted to  the  justices. 

To  the  Honorahle  House  of  Representatives  of  the  Commonwealth  of 
Massachusetts  : 

We  received  on  May  24,  1890,  your  order  of  Maj'  22,  1890,  a  copy 
of  which  is  annexed,  and  we  respectfuU}-  submit  tlie  following  opinion. 

In  considering  the  questions  asked,  we  assume  that  tlie  power  to  be 
conferred  is  not  merely  a  power  to  receive  and  use  property  given  in 
trust  for  the  purposes  named,  but  is  a  power  to  raise  money  by  tax- 
ation, and  by  means  of  it  to  construct  and  maintain  works  for  the 
manufacture  and  distribution  of  gas  or  electricitj',  to  be  used  by  the 
municipalities  for  lighting  the  public  streets  and  buildings,  and  by 
the  inhabitants  for  lighting  the  land  and  buildings  which  are  their  pri- 
vate propert}'. 

We  also  assume  that  the  gas  or  electricity  to  be  furnished  to  the  in- 
habitants for  their  private  use  is  to  be  paid  for  b}-  them  at  rates  to  be 
established,  whicli  shall  be  deemed  sufficient  to  reimburse  to  the  cities 
and  towns  the  reasonable  cost  of  what  is  furnished,  and  that  all  the 
inhabitants  of  a  city  or  town  are  to  have  the  same  or  similar  rigiits  to 
be  supplied  with  gas  or  electricity,  so  far  as  is  reasonably  practicable, 
and  the  capacity  and  extent  of  the  works^  which  it  is  deemed  expedient 


3w^*^ 


'h 


902  OPINION    OF   THE   JUSTICES.  [CIIAP.  V. 

to  maintain,  will  permit.  Whether  cities  and  towns  can  be  anthorized 
to  give  gas  or  electricity  to  their  inhabitants,  or  to  sell  either  to  them, 
at  var3ing  and  disproportionate  prices,  selecting  their  customers,  selling 
to  some  and  arbitrarily  refusing  to  sell  to  others,  are  questions  which  it 
is  not  necessary'  to  consider. 

By  the  Constitution,  full  power  and  authority  are  given  to  the  Gen- 
eral Court  to  make  "  all  manner  of  wholesome  and  reasonable  orders, 
laws,  statutes,  and  ordinances,"  not  repugnant  to  the  Constitution, 
which  "  tliev  shall  judge  to  be  for  the  good  and  welfare  of  this  Com- 
monwealth," etc.,  and  "to  impose  and  levy  proportional  and  reason- 
able assessments,  rates,  and  taxes  upon  all  the  inhabitants  of  and 
persons  resident,  and  estates  lying  within  the  said  Commonwealth, 
.  .  .  for  the  public  service,  in  the  necessar\^  defence  and  support  of  the 
government  of  the  said  Commonwealth,  and  the  protection  and  preser- 
vation of  the  subjects  thereof,"  t;tc.  Const.  Mass.,  Part  II.  chap.  i. 
sect.  i.  art.  iv. 

The  extent  of  the  right  of  taxation  is  not  necessaril}'  to  be  measured 
by  that  of  the  right  of  etninent  domain,  but  the  rights  are  analogous. 
Private  property'  can  be  taken  without  the^consent  of  the  owner  onl^^ 
forpublicjaseSj  and  the  owner  must  be  ijaid  full  compensation  therefor; 
otherwise,  he  would  contribute  more  than  his  proportional  share  toward 
the  public  expenses.  B3'  taxation  the  inhabitants  are  compelled  to 
part  with  their  propert}',  but  the  taxation  must  be  proportional  and 
reasonable,  and  for  public  purposes.  (Taxes  may  be  imposed  upon  all 
the  inhabitants  of  the  State  for  general  public  purposes,  or  upon  the 
inhabitants  of  defined  localities  for  local  purposes,  and  when  distinct 
private  benefits  are  received  from  public  works  special  assessments  may 
be  laid  upon  individuals. 

We  have  no  doubt  that,  if  the  furnishing  of  gas  and  electricity  for 
illuminating  purposes  is  a  public  service,  the  performance  of  this  ser- 
vice can  be  delegated  by  the  legislature  to  cities  and  towns  for  the 
benefit  of  themselves  and  their  inhabitants,  and  that  such  cities  and 
towns  can  be  authorized  to  impose  taxes  for  this  purpose  upon  their 
inhal)itants,  and  to  establish  reasonable  rates  which  the  inliabitants 
who  use  the  gas  or  electricity  can  be  compelled  to  pay.  The  funda- 
mental question  is  whether  the  manufacture  and  distribution  of  gas  or 
electricity  to  be  used  bj^  cities  and  towns  for  illuminating  purposes  is  a 
public  service. 

The  maintenance  of  public  streets  and  buildings  is  a  public  service, 
and  it  may  be  reasonably  necessary  to  light  them  in  order  that  the 
greatest  public  benefit  ma}-  be  obtained  from  using  them.  To  sa}'  noth- 
ing of  the  usefulness  of  lighting  streets  as  a  means  of  promoting  order 
and  of  affording  protection  to  persons  and  property,  the  common  con- 
venience of  the  inhabitants  ma}'  require  that  they  be  lighted.  Cities 
and  thickly  settled  towns  have  for  a  long  time  been  accustomed  to  light 
their  public  buildings  and  some  of  their  streets  at  the  public  expense. 
If  the  streets  and  public  buildings  are  to  be  lighted,  the  means  is  a 


CHAP,  v.]  OPINION   OF  THE  JUSTICES.  903 

matter  of  expedient*}'.  If  the  legislature  can  authorize  cities  and  towns 
to  light  their  streets  and  public  buildings,  it  can  authorize  them  to  do 
this  by  any  appropriate  means  which  it  may  think  exi)edient.  As  a 
question  of  constitutional  power,  we  cannot  distinguish  the  right  to 
authorize  cities  and  towns  to  buy  gas  or  electricity  for  their  use,  from 
the  right  to  authorize  them  to  manufacture  it  for  their  use.  We  there- 
fore answer  the  first  question  in  the  affirmative. 

The  second  question  is  one  of  more  difficult}'.  It  is  impossible  to 
define  with  entire  accuracy  all  the  characteristics  which  distinguish  a 
public  service  and  a  public  use  fj'om  services  and  uses  which  are  private. 
The  subject  has  been  considered  man}"  times  in  the  opinions  of  the 
court  of  which  we  are  now  the  justices,  and  Lowell  v.  HoslOft,  111 
Mass.  454,  is  a  leading  case.  It  is  there  said  that  "  an  appropriation 
of  money  raised  by  taxation,  or  of  property  taken  by  right  of  eminent 
domain,  by  way  of  gift  to  an  individual  for  his  own  private  uses  ex- 
clusively, would  clearly  be  an  excess  of  legislative  power;  "  that  "  the 
promotion  of  the  interests  of  individuals,  either  in  respect  of  property 
or  business,  although  it  may  result  incidentally  in  the  advancement  of 
the  public  welfare,  is,  in  its  essential  character,  a  private  and  not  a  pub- 
lic object ;  "  and  that  the  appropriation  of  property  for  turnpikes  and 
railroads  "can  only  be  justified  by  the  public  service  thereby  secured 
in  the  increased  facilities  for  transportation  of  freight  and  passengers, 
of  which  the  whole  community  may  rightfully  avail  itself.''  It  is  said 
that  the  essential  point  is  that  a  public  service  or  use  atfects  the  inhab- 
itants "  as  a  community,  and  not  merely  as  individuals." 

It  was  early  decided  that  "  the  prevention  of  damage  by  fire  is  one 
of  those  objects  affecting  the  interest  of  the  inhabitants  generally,  and 
clearly  within  the  scope  of  municipal  authority."  Allen  v.  Taunton^ 
19  Pick.  485.  Although  the  property  to  be  protected  is  private  prop- 
erty, the  need  of  protection  is  felt  by  every  owner  in  the  cit}'  or  town  ; 
the  property  of  one  may  be  endangered  by  the  burning  of  that  of 
another  ;  efficient  means  of  pi'otecting  his  property  cannot  well  be  fm*- 
nished  by  every  inhabitant ;  and  there  is  a  necessity  of  common  action 
whicli  makes  the  expenditure  of  money  for  tlie  purpose  properly  a 
municipal  expense. 

The  maintenance  of  sewers  and  drains  is  a  public  service.  One  ob- 
ject is  the  preservation  of  the  public  health  ;  but  apart  from  this  they 
are  of  great  convenience  to  the  inhabitants  whose  estates  can  be 
drained  by  them.  It  is  impracticable  for  every  owner  of  laud  in  cities 
and  towns  to  construct  and  maintain  sewers  and  drains  exclusively  on 
his  own  account ;  they  cannot  ordinarily  be  constructed  over  any  con- 
siderable territory  without  using  the  public  ways,  or  exercising  the 
right  of  eminent  domain  ;  they  are  therefore  regarded  as  of  common 
convenience,  and  are  constructed  at  the  public  expense. 

The  furnishing  of  water  for  cities  and  towns  for  domestic  use  affords 
perhaps  the  nearest  analogy  to  the  suliject  we  are  considering.  It  was 
long  ago  declared  that  "the  supply  of  a  large  number  of  inhabitants 


90-1  OPINION   OF   THE   JUSTICES.  [ciIAl'.  V 

with  pine  water  is  a  public  purpose."  Lumhard  v.  /Stearns,  4  Cush. 
60.  The  statutes  are  well  known  which  authorize  cities  and  towns  to 
maintain  water-works  for  supplying  their  inhabitants  with  water,  and 
the  constitutionality  of  these  statutes  has  not  been  doubted.  Water 
cannot  ordinarily  be  supplied  to  a  large  city  or  town  from  ponds  or 
streams  without  the  exercise  of  the  right  of  eminent  domain  and  the  use 
of  the  public  ways  ;  every  inhabitant  needs  water,  and  often  the  onl}' 
practicable  method  of  obtaining  it  is  by  the  agenc}'  of  corporations  or  of 
the  municipality.  The  land  for  the  public  waj'S  having  been  taken  for 
a  public  use,  it  may  be  subjected  to  other  public  uses,  but  it  cannot  be 
subjected  to  strictly'  private  uses  without  the  consent  of  the  owners  of 
the  fee  when  the  fee  remains  in  the  abutters.  There  is  therefore  often 
a  necessity  of  having  water,  common  to  the  inhabitants  of  a  commu- 
nity, which  cannot  well  be  met  except  by  the  exercise  of  public  rights, 
and  therefore  the  furnishing  of  water  has  been  considered  a  public 
service. 

In  the  case  of  water,  as  in  that  of  sewers  and  drains,  a  portion  of  the 
service  is  exclusively  public,  and  the  benefit  to  individuals  cannot  be 
separately  estimated  from  that  of  the  communit}' ;  but  a  part  of  the  ser- 
vice is  rendered  to  individuals,  and  the  benefit  of  this  can  be  separately 
estimated.  The  inhabitants  are  therefore  required  to  pay  for  the  water 
furnished  for  their  private  use,  and  special  assessments  for  the  use  of 
sewers  and  diains  are  laid  upon  estates  specially  benefited  ;  and  for  the 
same  reasons,  while  in  laying  out  highways  the  expense  is  public, 
betterment  assessments  ma}'  be  laid  upon  the  owners  of  lands  specially 
benefited. 

Artificial  light  is  not,  perhaps,  so  absolutely  necessary  as  water,  but 
it  is  necessary  for  the  comfortable  living  of  every  person.  Although 
artificial  light  can  be  supplied  in  other  ways  than  by  the  use  of  gas  or 
electricity,  yet  the  use  of  one  or  both  for  lighting  cities  and  thickly  set- 
tled towns  is  common,  and  has  been  found  to  be  of  great  convenience, 
and  it  is  practically  impossible  for  every  individual  to  manufacture  gas 
or  electricity  for  himself.  If  gas  or  electricity  is  to  be  generally  used 
in  a  city  or  town,  it  must  be  furnished  by  private  companies  or  by  the 
municipality,  and  it  cannot  be  distributed  without  the  use  of  the  public 
streets,  or  the  exercise  of  the  right  of  eminent  domain. 

It  is  not  necessarily  an  objection  to  a  public  work  maintained  by  a 
city  or  town,  that  it  incidentally  benefits  some  individuals  more  than 
others,  or  that  from  the  place  of  residence  or  for  other  reasons  every 
inhabitant  of  the  city  or  town  cannot  use  it,  if  every  inhabitant  who  is 
so  situated  that  he  can  use  it  has  the  same  right  to  use  it  as  the  other 
inhabitants.  It  must  often  be  a  question  of  kind  and  degree  Avhether 
the  promotion  of  the  interests  of  manj'  individuals  in  the  same  commu- 
nity constitutes  a  public  service  or  not.  But  in  general  it  may  be  said 
that  matters  which  concern  the  welfare  and  convenience  of  all  the  in- 
habitants of  a  city  or  town,  and  cannot  be  successfully  dealt  with  with- 
out the  aid  of  powers  derived  from  the  legislature,  ma}-  be  subjected  to 


CHAP,  v.]  OPINION   OF   THE   JUSTICES.  905 

municipal  control  when  the  benefits  received  are  such  that  each  inhab- 
itant needs  them  and  may  participate  in  them,  and  it  is  for  the  interest 
of  each  inhabitant  that  others  as  well  as  himself  should  possess  and 
enjoy  them. 

If  the  legislature's  of_opinion  that  the  comnoon  convenience  ajid  wel^ 
fare~of  the  inhabitants_of  cities  oi^wns  will  be  promotedjjy  confening 
upon  the  municipalities  the  power  of  manufacturing  and  distributing^ 
gas  or  electricity  for  the  purpose  of  furnishing  light  to  their  inhabitan_ts_ 
wethink  that  the  legislature  can  confer  the  power.  We  therefore 
answer  the  second  question  in  the  affirmative. 

We  notice  that  the  bill/  a  copy  of  which  was  enclosed  witii  your 
order,  relates  to  the  manufacture  and  distribution  of  gas  or  electricity, 
not  onlj-  for  furnisliing  light,  but  also  for  furnishing  heat  and  power. 
We  have  not  considered  whether  the  furnishing  of  gas  or  electricity  for 
suppljing  either  heat  or  power  can  be  regarded  as  a  public  service. 
We  have  confined  our  opinion  to  the  questions  asked,  which,  as  we 
understand  them,  relate  to  the  manufacture  and  distribution  of  gas  or 
electricity  solely  for  the  purpose  of  furnishing  light. 

Marcus  Morton. 

Walbridge  a.  Field. 

Charles  Devens. 

WiLLL4M  Allen. 

Charles  Allen. 

Oliver  Wendell  Holmes,  Jr. 

Marcus  P.  Knowlton. 
BosToy,  May  27,  1890. 


OPINIONS  OF  THE  JUSTICES 

Op  the  Supreme  Judicial  Court  of  Massachusetts.     1892. 

[155  Mass.  598.] 

The  following  order  was  adopted  by  the  House  of  Representatives 
on  April  12,  1892,  and  thereupon  transmitted  to  the  Justices  of  the 
Supreme  Judicial  Court,  who,  on  Ma}'  7,  1892,  returned  the  opinions 
which  are  subjoined. 

Ordered,  That  the  opinion  of  the  Justices  of  the  Supreme  Judicial 
Court  be  required  upon  the  following  important  questions  :  — ■ 

First.  Is  it  within  the  constitutional  power  of  the  legislature  to  enact 
a  law  conferring  upon  a  city  or  town  within  this  Commonwealth  the 
power  to  purchase  coal  and  wood  as  fuel,  in  excess  of  its  ordinary 
requirements,  for  the  purpose  of  selling  such  excess,  so  purchased,  to 
its  own  citizens? 

1  This  1)ill  was  pa.ssed  by  the  House,  but  was  referred  by  the  Senate  to  the  next 
General  Court. 


906  OPINIONS   OF   THE   JUSTICES.  [CIIAP.  V. 

Second.  Is  it  within  the  constitutional  power  of  the  legislature  to 
enact  a  law  conferring  u[)on  a  city  or  town  within  this  ConHuonwealth 
tlie  power  to  purchase,  for  the  pui'pose  of  sale,  and  to  sell  to  its  own 
citizens,  coal  and  wood  as  fuel? 

Third.  Is  it  within  the  constitutional  power  of  the  legislature  to 
enact  a  law  conferiing  upon  cities  and  towns  within  this  Commonwealth 
authority  to  establish  and  maintain  municipal  fuel  or  coal  yards  for  the 
pur[)0se  of  selling  coal,  wood,  or  other  fuel  to  the  inhabitants  of  such 
cities  and  towns? 

And  be  it  further  ordered,  That  the  Justices  of  the  Supreme  Judicial 
Court  be  informed  that  the  foregoing  questions  are  propounded  with  a 
view  to  further  legislation  upon  the  subjects  therein  referred  to,  and  that 
for  their  more  particular  information  a  copy  of  House  Document  No. 
395,  being  a  bill  now  pending  before  this  House,  and  upon  the  subject- 
matter  of  which  the  foregoing  questions  are  propounded,  be  transmitted 
to  the  justices. 

The  House  Document  referred  to  in  the  above  order,  and  transmitted 
therewith  to  the  justices,  contained  the  following  bill,  entitled  "An  Act 
to  enable  Cities  and  Towns  to  purchase,  sell,  and  distribute  Fuel."  [An 
abstract  of  the  bill  is  given  in  a  note.^] 

To  the  Honorable  the  House  of  Representatives  of  the  Commonwealth 
of  Jfassachusetts. 

We,  five  of  the  Justices  of  the  Supreme  Judicial  Court,  in  replj'  to 
3'our  order,  respectfullj-  submit  the  following  opinion  :  — 

Whether  the  legislature  can  authorize  a  cit}'  or  town  to  bu}'  coal  and 
wood,  and  to  sell  them  to  its  inTiabitants  for  fuel,  must  be  "determined 
bj_con sidering  whether  the  carry ing  on  of  such  a  business  for  the  benefit 
of  the  inhabitants  can  be  regarded  as  a  public  service.  This  inquir}- 
underlies  all  the  questions  on  which  our  opinion  is  required.  If  such  a 
business  is  to  be  carried  on,  it  must  be  with  money  raised  bj-  taxation. 
It  is  settled  that  the  legislature  can  authorize  a  city  or  town  to  tax  its 
inhabitants  only  foi'  public  [3ur[jD.se^.  7  This  is  not  only  the  law  of  this 
Commonwealth,  but  of  the  States  generall}'  and  of  the  United  States. 
The  following  are  some  of  the  decisions  or  opinions  on  the  subject : 
Loioell  v.  Boston,  111  Mass.  454;  Head  v.  Acton,  139  Mass.  341; 
Opinion  of  the  Justices,  150  Mass.  592;  Kingman  v.  BrocMon,  153 
Mass.  255  ;   Loan  Association  v.  Topeka,  20  Wall.  G55  ;   Ottawa  v. 

1  The  substance  of  the  bill  is  as  follows:  It  authorizes  (s.  1)  any  city  and  town  to 
establish  one  or  more  fuel  yards  to  supply  the  municipality  with  fuel  and  to  sell  and 
distribute  the  same  to  inhabitants  who  may  buy  it.  It  provides  (s.  2)  that  cities  nmst 
first  have  authority  by  a  two-thirds  vote  of  each  branch  of  the  city  council,  and  the  appro- 
val of  the  mayor  and  of  a  majority  of  the  voters  at  an  annual  municipal  election  ;  that 
towns  (s.  3)  must  have  a  two-thirds  vote  at  two  town  meetings  called  for  the  purpose,  — 
the  later  of  the  two  at  an  interval  of  from  two  to  thirteen  months  after  the  former. 
Section  4  provides  for  issuing  bonds  to  pay  for  establishing  the  wood-yard  and  for  other 
financial  details.  Sections  5  and  6  deal  with  enlargements  of  the  yards,  &c.,  and  with 
providing  regulations  of  management.  —  Ed. 


CHAP,  v.]  OPINIONS   OF   THE   JUSTICES.  907 

Carey,  108  U.  S.  110  ;  Cole  v.  La  Grange,  113  U.  S.  1  ;  Allen  v.  Jay, 
60  Maine,  124  ;  Opinion  of  the  Juatices,  58  Maine,  590  ;  Attorney- 
General  V.  £au  Claire,  37  Wis.  400  ;  State  v.  JSau  Claire,  40  Wis.  533  ; 
/State  V.  Osaivkee,  14  Kans.  418  ;  Mather  v.  Ottawa,  114  111.  Go9. 

It  is  not  easy  to  determine  in  every  case  whether  a  benefit  conferred 
npon  many  iiulividuals  in  a  community  can  be  called  a  public  service 
within  the  meaning-  of  the  rule  that  taxes  can  be  laid  only  for  public 
purposes.  Jn  oeneral,  however,  it  may  be  said  that  the  promotion  by 
taxation  of  the  private  interests  of  many  individuals  is  not  a  public 
service  within  the  meaning  of  the  ConstitutioiT!  TTuTl^reamble  of  the 
Constitution  declares  that  "The  end  of, the  institution,  maintenance, 
and  administration  of  government  is  to  secure  the  existence  of  the  body 
politic,  to  protect  it,  and  to  furnish  the  individuals  who  compose  it  with 
the  power  of  enjoying  in  safety  and  tranquillity  their  natural  rights  and 
the  blessings  of  life."  It  is  declared  in  Part  I.,  Art.  I. :  "All  men  are 
born  free  and  equal,  and  have  certain  natural,  essential,  and  unalienable 
rights  ;  among  which  may  be  reckoned  the  right  of  enjoying  and  defend- 
ing their  lives  and  liberties  ;  that  of  acquiring,  possessing,  and  protect- 
ing property  ;  in  fine,  that  of  seeking  and  obtaining  their  safety  and 
happiness." 

Constitutional  questions  concerning  the  power  of  taxation  necessarily 
are  largely  historical  questions.  The  Constitution  must  be  interpreted 
as  any  other  instrument  with  reference  to  the  circumstances  under  which 
it  was  framed  and  adopted.  It  is  not  necessary  to  show  that  the  men 
who  framed  it  or  who  adopted  it  had  in  mind  everything  which  by  con- 
struction may  be  found  in  it,  but  some  regard  must  be  had  to  the  modes 
of  thought  and  action  on  political  subjects  then  prevailing,  to  the  dis- 
cussions upon  the  nature  of  the  government  to  be  established,  to  the 
meaning  of  the  language  used  as  then  understood,  and  to  the  grounds 
on  which  the  adoption  or  rejection  of  the  Constitution  was  advocated 
before  the  people.  We  know  of  nothing  in  the  historj'  of  the  adoption 
of  the  Constitution  that  gives  any  countenance  to  the  theory  that  the 
buying  and  selling  of  such  articles  as  coal  and  wood  for  the  use  of  the 
inhabitants  was  regarded  at  that  time  as  one  of  the  ordinary  functions 
of  tlie  government  which  was  to  be  established.  There  are  nowhere  in 
the  Constitution  any  provisions  which  tend  to  show  tliat  the  government 
was  established  for  the  purpose  of  carrying  on  the  buying  and  selling  of 
such  merchandise  as  at  the  time  -when  the  Constitution  was  adopted  was 
usually  bought  and  sold  by  individuals,  and  with  which  individuals  were 
able  to  supply  the  community,  no  matter  how  essential  the  business 
might  be  to  tlie  welfare  of  the  inhabitants.  TJie, object  of  the  Constitu- 
tion \yas  to  protect  individuals  inthcii'  rights  to  carry^  on  the  customary 
business  of  life,  rather  than  to  aivthorize  the  Commonwealth  or  the 
"towns,  parishes,  precincts,  and  other  bodies  politic"  to  undertake  what 
had  usuall}"  been  left  to  the  private  enterprise  of  individuals. 

In  the  opinion  in  Loan  Association  v.  Topeka,  20  Wall.  055,  664, 
the  Supreme  Court  of  the  United  States  say:  "It  is  undoubtedly  the 


908  OPINIOIS'S  OF  THE  JUSTICES.  [CHAP.  V. 

duty  of  tlio  legislature  which  imposes  or  authorizos  niiinicipalitics  to 
impose  a  tax  to  sec  that  it  is  not  to  be  used  for  purposes  of  private 
interest  instead  of  a  public  use,  and  the  courts  can  only  be  justilied  in 
interposing  when  a  violation  of  this  principle  is  clear  and  the  reason  for 
interference  cogent.  And  in  deciding  whether,  in  the  given  case,  the 
object  for  which  the  taxes  are  assessed  falls  upon  the  one  side  or  the 
other  of  this  line,  thev  must  be  governed  mainly  b}-  the  course  and 
usage  of  the  government,  the  objects  for  which  taxes  have  been  cus- 
tomaril}'  and  by  long  course  of  legislation  levied,  what  objects  or  pur- 
poses have  been  considered  necessary  to  the  support  and  for  the  proper 
use  of  the  government,  whether  State  or  municipal." 

The  early  usages  of  towns  undoubtedly  did  not  exhaust  the  authority 
which  the  legislature  can  confer  upon  municipalities  to  levy  taxes. 
Cities  and  towns,  since  the  adoption  of  the  Constitution,  have  been 
authorized  to  lev}'  taxes  for  many  other  purposes  than  those  for  which 
taxes  were  then  levied.  Up  to  the  present  time,  however,  none  of  the 
purposes  for  which  cities  and  towns  have  been  authorized  to  raise  money 
has  included  anything  in  the  nature  of  what  is  commonl}"  called  trade 
or  commercial  business.  Instances  can  be  found  of  some  very  curious 
legislation  b}'  towns  in  the  colonial  and  provincial  times,  some  of  which 
would  certainly-  now  be  thought  to  be  beyond  the  powers  of  towns  under 
the  Constitution.  Whatever  the  theory  was,  towns  in  fact  under  the 
Colony  Charter,  and  for  some  time  under  the  Province  Charter,  often 
acted  as  if  their  powers  were  limited  onl^-  by  the  opinion  of  the  inhabi- 
tants as  to  what  was  best  to  be  done.  This  was  the  result  of  their 
peculiar  situation  and  condition,  and  the  powers  of  towns  or  of  the 
General  Court  were  not  much  considered.  The  exercise  of  these 
extraordinary  powers,  however,  gradually  died  out. 

The  purposes  for  which,  by  the  Province  laws,  towns  were  authorized 
to  raise  money  were  for  the  maintenance  of  highwa3's,  the  support  of 
the  ministry',  schools,  and  the  poor,  and  for  the  defraying  of  other 
necessar}'  charges  arising  within  the  town.  The  words  "necessary 
charges"  (Pub.  Sts.  c.  27,  §  10,  ad  Jin.)  are  still  retained  in  the  stat- 
utes, but  they  have  been  strictl}^  construed  bj'  the  courts.  We  do 
not  find  either  in  the  Colony  or  the  Province  laws  any  legislation 
relating  to  the  buying  and  selling  of  coal  or  wood  b}'  tow^ns  for  the 
use  of  the  inhabitants,  or  any  legislation  on  an}'  similar  subject.  It 
is  possible  that  there  may  be  found  in  the  records  of  some  town  a 
vote  or  votes  showing  that  the  town  in  an  emergency  was  authorized 
to  buy  wood  or  coal  for  the  purpose  of  supplying  its  inhabitants 
with  fuel,  but  we  have  not  found  an}-.  Certainly  it  was  not  usual 
for  towns  to  supply  their  inhabitants  with  fuel,  unless  they  were  pau- 
pers. Neither  was  it  usual  for  towns  to  supply  their  inhabitants  with 
grain  or  other  commodities.  We  know  of  no  instance  of  tliis  being 
done,  except  by  the  town  of  Boston.  In  the  fall  of  1713  there  was  a 
scarcity  of  grain,  and  the  General  Court  prohibited  the  exportation  of 
it.     1  Prov.  Laws  (State  ed.)  724.     The  town  of  Boston  in  March, 


CHAP,  v.]  OriNIONS   OF   THE   JUSTICES.  909 

1713-14,  voted  to  lay  in  a  stock  of  grain  to  tlie  amount  of  five  thousand 
bushels  of  corn,  and  to  store  it  in  some  convenient  place,  and  it  was 
left  to  the  selectmen  to  dispose  of  it  as  the}-  saw  fit.  8  Record  Com- 
missioner's Reports,  101,  104.  After  that,  as  shown  by  the  records, 
the  town  regtilarl}-  bought  and  stored  grain  and  sold  it  to  the  inhabi- 
tants as  late  as  1775,  and  perhaps  later,  and  it  established  two  grana- 
ries, one  of  which,  in  tlie  Common,  I'enuiined  in  use  probably  as  long  as 
the  town  bought  and  sold  grain.  Whether,  after  the  Revolution,  the 
town  continued  to  bu}-  grain  we  are  not  informed,  as  the  records  have 
not  been  printed.  The  amount  which  could  be  sold  to  an}'  one  person 
was  often  limited  to  a  few  bushels  at  a  time.  The  report  of  a  commit- 
tee in  1774  sliows  that  from  IMarch,  1769,  to  March,  1774,  the  quantity 
of  corn  and  rye  purchased  was  5,836  bushels,  and  that  the  stock  on 
hand  was  376  bushels.  It  is  apparent  that  the  original  purpose  was  to 
provide  against  a  famine,  and  that  it  was  not  the  intention  of  the  town 
to  assume  the  business  of  buying  and  selling  all  the  grain  which  the 
inhabitants  needed,  but  of  keeping  such  an  amount  in  store  as  was 
necessary  in  order  that  small  quantities  might  be  obtained,  particularly 
by  the  poorer  inhabitants,  at  what  the  selectmen,  or  a  committee  of  the 
town,  or  the  town  itself,  deemed  reasonable  prices.  On  May  25,  1795, 
the  town  voted  to  sell  the  granar}-.  This  action  of  the  town  of  Boston 
was  an  exception  to  the  usages  of  towns,  and  it  appears  from  the  reports 
of  committees  that  before  the  Revolution  it  had  come  to  be  considered 
as  of  doubtful  expediency,  and  during  the  Revolution,  or  not  long  after, 
it  was  discontinued. 

The  nearest  analogy  under  the  Constitution  to  the  subject  we  are  con- 
sidering is  the  authority  given  b}'  the  recent  statute  (St.  1891,  c.  370) 
whereby  cities  and  towns  are  empowered  to  maintain  works  for  the 
manufacture  and  distribution  of  gas  or  electricit}'  for  furnishing  light 
to  the  municipalities  and  their  inhabitants.  In  the  opinion  given  to 
the  House  of  Representatives  on  Maj'  27,  1890,  which  is  printed  in  150 
Mass.  592,  the  justices  advised  that  the  manufacture  and  distribution 
of  gas  or  electricit}'  for  furnishing  light  to  the  inhabitants  of  cities  and 
towns  might  properl}^  be  regarded  as  constituting  a  public  service.  It 
was  there  said  :  "  It  must  often  be  a  question  of  kind  and  degree  whether 
the  promotion  of  the  interests  of  many  individuals  in  the  same  com- 
munity constitutes  a  public  service  or  not."  Gas  or  electricit}'  for  fur- 
nishing light  has  in  recent  times  become  a  most  convenient  means  of 
lighting  both  public  and  private  buildings,  streets,  and  grounds.  It  is 
impracticable  that  each  individual  should  manufacture  gas  or  electricity 
for  himself,  but  this  cnn  best  be  done  by  some  company  or  the  munici- 
pality for  a  considerable  territory,  and  for  the  use  of  both  the  munici- 
pality itself  and  the  inhabitants.  Everybody  who  chooses  within  that 
territory  cannot  be  permitted  to  manufacture  and  distribute  gas  or 
electricity  for  the  public  use  or  the  use  of  other  persons,  as  it  is  dis- 
tributed by  means  of  |)ipes  or  wires,  and  the  number  who  properly  can 
be  permitted  to  lay  pi[)os  or  wires  in  a  given  territor}'  must  be  limited 


910  OPINIONS   OF   THE  JUSTICES.  [CHAP.  V. 

to  one,  or  at  most  to  a  few  persons  or  corporations.  The  pii)cs  or  wires 
must  be  laid  in  or  over  the  public  ways,  or  in  or  over  land  taken  for  the 
purpose,  which  may  require  the  exercise  of  the  right  of  eminent  domain. 
These  were  some  of  the  reasons  why  the  subject  seemed  to  the  justices 
a  proper  one  for  municipal  regulation  and  control,  and  to  constitute  a 
service  which  a  municipality  could  be  authorized  to  perform  for  itself 
and  its  inhabitants. 

But  when  the  Constitution  w^as  adopted  the  buying  and  selling  of  wood 
and  coal  for  fuel  was  a  well-known  form  of  private  business,  which  was 
generally  carried  on  as  other  kinds  of  business  were  carried  on  ;  and  is 
now  carried  on  in  much  the  same  manner  as  it  was  then.  It  was  and 
is  a  kind  of  business  which  in  its  relations  to  the  community  did  not  and 
does  not  differ  essentially  from  the  business  of  buying  and  selling  any 
other  of  the  necessaries  of  life.  Although  all  kinds  of  business  ma}'  be 
regulated  by  the  legislature,  yet  to  buy  and  sell  coal  and  wood  for  fuel 
requires  no  authority  from  the  legislature,  and  requires  the  exercise  of 
no  powers  derived  from  the  legislature,  and  every  person  who  chooses 
can  engage  in  it  in  the  same  manner  as  in  the  buying  and  selling  of 
other  merchandise.  We  are  not  aware  of  any  necessity  why  cities  and 
towns  should  undertake  this  form  of  business  any  more  than  many  others 
which  have  always  been  conducted  by  private  enterprise,  and  we  are  not 
called  upon  to  consider  what  extraordinary  powers  the  Commonwealth 
may  exercise,  or  may  authorize  cities  and  towns  to  exercise,  in  extraordi- 
nary exigencies  for  the  safety  of  the  State  or  the  welfare  of  the  inhab- 
itants. If  there  be  any  advantage  to  the  inhabitants  in  buying  and 
selling  coal  and  wood  for  fuel  at  the  risk  of  the  community  on  a  large 
scale,  and  on  what  has  been  called  the  co-operative  plan,  we  are  of  tlie 
opinion  that  the  Constitution  does  not  contemplate  this  as  one  of  the 
ends  for  which  the  government  was  established,  or  as  a  public  service 
for  which  cities  and  towns  may  be  authoi'ized  to  tax  their  inhabitants. 
We  therefore  answer  the  questions  in  the  negative. 

Walbridge  a.  Field. 
Charles  Allen. 
Marcus  P.  Knowlton. 
James  M.  ]Morton. 
John  Lathrop. 
Mat  7,  1892. 

To  the  Honorable  the  House  of  Representatives  of  the  Commonwealth 

of  3Tassachusptts. 

I  am  of  opinion  that  when  money  is  taken  to  enable  a  public  body  to 

\^  \>       offer  to  the  public  without  discrimination  an  article  of  general  necessity, 

^    y         the  purpose  is  no  less  public  when  that  article  is  wood  or  coal  than  when 

V       •     ^t  i*^  water,  or  gas,  or  electricity,  or  education,  to  say  nothing  of  cases 

,  '.""       like  the  support  of  paupers  or  the  taking  of  land  for  railroads  or  public 

"         markets. 

I  see  no  ground  for  denying  the  power  of  the  legislature  to  enact  the 


CHAP,  v.]  OPINIONS    OF   THE   JUSTICES.  911 

laws  mentioned  in  the  questions  proposed.     The  need  or  expediency  of 
such  legislation  is  not  for  us  to  consider. 

Oliver  Wendell  Holmes,  Jr. 

To  the  Honorable  the  House  of  Reprssentatives  of  the  Commonioealth 
of  Massachusetts. 

In  repl}'  to  the  questions  submitted  by  your  order  of  April  12,  1892, 
for  the  opinion  of  the  Justices  of  the  Supreme  Judicial  Court,  I  have 
to  say  that  under  our  Constitution  "The  end  of  the  institution,  main- 
tenance, and  administration  of  government  is  to  secure  the  existence  of 
tlie  body  politic,  to  protect  it,  and  to  furnish  the  individuals  who  com- 
pose it  with  the  power  of  enjoying  in  safety  and  tranquillity  their  natural 
rights  and  the  blessings  of  life."  Witliout  artificial  heat,  vei-y  few  of  our 
inhabitants  would  have  the  power  of  enjoying  these  rights  and  blessings. 
So  far,  and  so  far  only,  as  it  is  a  necessit}-  of  society  as  now  organized, 
for  tlie  government  to  supply  fuel  in  order  to  afford  an  envii-onment 
which  shall  give  this  power,  it  is  competent  for  the  government  to  fur- 
nish or  to  provide  for  a  supph'.  But  it  is  not  within  its  constitutional 
power  to  engage  in  trade  or  manufacture  mereh'  for  the  purpose  of 
having  any  branch  of  business  conducted  upon  a  convenient  or  economi- 
cal plan.  Fuel  is  now  legitimately  furnished  to  paupers  by  towns  and 
cities  at  the  public  expense.  If  there  is  an  emergency,  local  or  general, 
which  cannot  be  adequately  met  by  ordinary  private  agency,  it  is  within 
the  constitutional  power  of  the  government  to  supply  the  needs  of  the 
people  in  this  respect,  either  through  the  towns  and  cities,  or  through 
other  agencies.  The  question  of  the  exigenc}',  in  the  first  instance,  is 
for  the  legislature.  If  there  is  no  adequate  source  of  supply  of  fuel 
except  through  the  establishment  of  governmental  agencies,  the}'  may 
be  lawfully  inaugurated.  If,  on  the  other  hand,  there  is  no  want  of 
adequate  service,  the  legislature  has  no  constitutional  right  to  create 
agencies  for  the  purpose.  It  has  no  right  to  authorize  towns  and  cities 
to  engage  in  trade  merely  to  try  an  experiment  in  practical  economics, 
or  to  put  in  practice  a  theory'. 

M}'  answer  to  the  questions  propounded  is,  therefore,  "Yes,  if  the 
necessities  of  society,  as  now  organized,  can  be  met  onl}'  b}-  the  adop- 
tion of  such  measures,"  and  "No,  if  there  is  no  such  necessity,  but 
merely  an  expediency  for  the  trial  of  an  experiment." 

James  M.  Barker. 


^" 


912        ^  STATE  V.    CITY   OF  TOLEDO.  [CIIAP.  V. 

STATE  V.   CITY  OF  TOLEDO. 

Supreme  Court  of  Ohio.     1891. 

[48  Ohio  St.  112  ] 

Quo  warranto. 

On  the  22(1  da}-  of  JanuaiT,  1889,  the  General  Assembly  passed  an 
Act  which  reads  as  follows  :  "  An  Act  to  authorize  cities  of  the  third 
grade  of  the  first  class  to  borrow  money  and  issue  bonds  therefor  for 
the  purpose  of  procuring  territory-  and  right  of  way,  sinking  wells  for 
natural  gas,  purchasing  wells  and  natural  gas  works,  pnrchasing  and 
laying  pipes,  and  snpplying  such  cities  with  natural  gas  for  public  and 
private  use  and  consumption."  .  .  .  [The  city  of  Toledo  under  this  Act 
issued  bonds  and  applied  the  proceeds  to  the  purposes  named  above.] 
This  proceeding  in  quo  warranto  is  instituted  in  this  court  to  oust  and 
exclude  the  cit}-  of  Toledo  from  an}-  and  all  authority  to  have,  use,  and 
enjoy  the  liberty,  privilege,  and  franchise  of  issuing  and  selling  said 
bonds  and  devoting  the  proceeds  towards  the  prosecution  of  said  enter- 
prise of  supplying  natural  gas,  on  the  alleged  ground  —  fully  set  forth 
in  the  opinion  of  the  court  —  that  the  said  Act  of  January  22,  1889,  is 
in  conflict  with  the  Constitution  of  this  State,  and  therefore  invalid  and 
void  in  law. 

D.  K.  Watson.,  Attorney-General,  Donle.,  Scott,  &  Leicis,  Thomas 
W.  /Sanderson,  F.  E.  Hatchins,  Frank  II.  Ilurd,  and  E.  D.  Potter, 
Jr.,  for  relator.  W.  H.  A.  Read,  City  Solicitor,  Barton  Smith,  and 
Clarence  Brown,  for  defendant. 

DiCKMAN,  J.  .  .  .  We  are  brought  now  to  the  question  whether 
the  authority  given  to  Toledo  and  other  cities  to  issue  natural  gas 
bonds,  and  levy  taxes  to  pay  them,  was  for  a  purpose  of  so  public  and 
general  a  nature  as  not  to  transcend  the  legislative  power  vested  in  the 
General  Assembly.  In  holding  that  there  can  be  no  lawful  tax  which 
is  not  imposed  for  a  public  purpose,  the  line  of  demarcation  is  by  no 
means  clear  and  distinct  and  well  defined  between  what  is  for  public 
and  what  for  private  purposes.  It  would  be  exceedingly  difficult  to 
lay  down  any  general  principle,  or  construct  any  formula,  by  which 
each  case  as  it  arises  may  be  assigned  to  the  one  or  the  other  side  of 
the  line.  There  are,  however,  certain  objects,  the  promotion  of  which, 
by  reason  of  their  being  treated  as  of  general  necessity,  has  been  de- 
cided to  l>e  a  public  use  or  purpose.  Thus  it  is  now  the  well-settled 
doctrine  throughout  the  several  States  that  the  business  of  public  high- 
ways, turnpikes,  bridges,  canals,  and  other  public  means  for  t.'avel  and 
for  the  transportation  of  goods  are  a  public  use  within  the  Constitution. 
The  objects  and  business  of  aqueduct  and  water-works  companies  for 
the  supply  of  cities  and  their  inhabitants  with  water  are  a  public  use. 
Beddall  v.  Brt/an,  14  Md.  444  ;  Burden  v.  Stein,  27  Ala.  104  ;  Liun- 
bard  v.  Stearns,  4  Cush.  60  ;  3Iaijor,  etc.  v.  Baileij,  2  Denio,  433,  452, 


CHAP,  v.]  STATE   V.    CITY    OF    TOLEDO.  913 

per  Oakdixer,  P.  The  sewerage  of  a  city  is  also  held  to  be  a  public 
use.  H'ddreth  v.  Loweli,  11  Gra}',  345,  Land  taken  in  a  city  for 
public  parks  and  squares,  by  authority  of  law,  whether  advantageous 
to  the  public  for  recreation,  health,  or  business,  is  deemed  to  be  taken 
for  a  public  use.  In  re  Commissioners  of  Central  Park,  63  Barb. 
282.  And  in  Bloomfield,  etc.  Natural  Gas  Light  Co.  v.  Richardson, 
63  Barb.  437,  the  corporation  undertook  to  conduct  the  natural  gas 
flowing  from  a  gas  spring  or  well  to  the  c\t\  of  Rochester,  a  distance 
of  about  30  miles.  The  case,  it  is  true,  involved  the  right  of  eminent 
domain,  and  not  taxation,  but  in  a  proceeding  to  acquire  the  right  of 
way  for  its  mains  tlirough  the  lands  of  private  owners,  and  to  appoint 
commissioners  of  appraisal,  it  was  held  that  the  purposes,  object,  and 
business  of  the  corporation  were  a  public  use  within  the  meaning  of  the 
Constitution. 

In  the  present  controvers}'  the  object  proposed  is  to  supplv  the  city 
and  the  citizens  of  Toledo  with  natural  gas  "  for  public  and  private  use 
and  consumption."  The  terms  employed  to  define  the  object  are  com- 
prehensive. Whether  for  fuel  or  as  an  illuminant,  tiie  design  is  to 
furnish  gas  for  all  public  buildings,  and  for  the  private  consumption  of 
the  community  at  large.  The  expense  of  the  undertaking  is  not  to  be 
incurred  in  behalf  of  a  favored  class  of  citizens,  or  to  foster  certain 
branches  of  industry,  but  for  the  benefit  of  all  the  inhabitants  of  the 
city.  If  natural  gas  is  thereb}'  made  cheap,  or  cheaper  than  before, 
to  consumers,  such  an  advantage  will  inure  to  any  and  all  who  may 
avail  themselves  of  the  privilege  of  using  it.  Nor  does  their  use  of  it 
necessarily  imply  taxation  for  the  payment  of  the  principal  and  interest 
of  the  bonds  issued  by  the  manieipality,  as  the  income  derived  from  the 
consumption  of  natural  gas  might  prove  full}'  adequate  to  such  pay- 
ment. Water,  light,  and  heat  are  objects  of  prime  necessity.  Their 
use  is  general  and  universal.  It  is  now  well  settled  that  the  legislature, 
in  the  exercise  of  its  constitutional  power,  raaj'  authorize  cities  to 
appropriate  real  estate  for  water-works  ;  and  levy  and  assess  upon  the 
general  tax-list  an  assessment  on  all  taxable  real  and  personal  property 
in  the  corporation  for  the  payment  of  the  cost  and  repair  of  such 
water-works  ;  and  for  the  purpose  of  paying  the  expenses  of  conduct- 
ing and  managing  the  works  a  water-rent  mav  be  assessed  upon  all 
tenements  and  premises  supi)liod  with  water.  And  yet,  in  cities  and 
towns  where  there  are  public  water-works,  there  are  often  large  num- 
bers of  the  inhabitants  who  do  not  connect  their  dwellings  or  business 
establishments  with  the  water-pipes  laid  in  the  streets,  and  who  rely 
for  their  supply  of  water  upon  the  ordinary  methods  and  sources. 
They  are  taxed,  nevertheless,  for  the  construction  of  works  of  which 
they  may  have  no  immediate  need  to  avail  themselves  ;  but  such  works 
meet  the  wants  of  the  rest  of  the  communit\'.  And  as  a  protection 
from  fire,  as  a  means  for  the  preservation  of  health,  to  supply  an  article 
of  convenience  and  necessity  to  the  great  body  of  the  citizens,  for 
domestic  uses,  for  operating  manufacturing  establishments,  for  heating 
VOL.  r.  —  58 


914  STATE   V.    CITY   OF  TOLEDO.  [ciIAP.  V. 

houses,  for  generating  steam  in  all  its  varied  applications,  municipal- 
ities incur  debts  and  levy  taxes  for  constructing  and  maintaining 
expensive  water-works.  The  benefits  and  conveniences  offered  may 
not  be  embraced  by  all,  but  they  are,  notwithstanding,  designed  for  the 
general  advantage,  and  subserve  what  is  recognized  as  a  public  pur- 
pose. The  city  in  its  corporate  capacity  does  that  for  the  citizen 
which  he  could  never  accomplish  b^'  his  individual  effort,  and  leaves 
it  to  his  option  to  accept  or  dispense  with  the  privilege  offered. 

What  we  have  said  in  reference  to  water-works  is,  for  the  most  part, 
applicable  to  the  erecting  and  maintaining  of  natural  or  artificial  gas 
works.  In  State  v.  Cit//  of  Hamilton,  47  Ohio  St.  52,  the  citj'  issued 
its  bonds  for  the  purpose  of  erecting  artiticial  gas-works,  and  furnish- 
ing the  public  lighting  for  the  city.  This  court  held  in  that  case  that 
the  city  was  empowered  to  erect  its  own  gas-works  at  the  expense  of 
the  corporation.  It  did  not  become  necessary  to  decide  whether,  by 
virtue  of  the  sections  of  the  Revised  Statutes  then  under  consideration, 
the  cit3'  would  be  authorized  to  construct  its  own  gas-works,  and  fur- 
nish gas  to  the  inhabitants  for  private  consumption.  That  question 
has  been  argued  in  the  case  at  bar  by  relator's  counsel  in  State  v.  Citi/ 
of  Hanillton,  now  pending  in  this  court,  on  brief  filed  in  the  last-en- 
titled case.  But,  as  throwing  light  upon  the  present  investigation, 
and  as  an  authority  entitled  to  the  highest  respect  we  must  acknowl- 
edge the  force  of  the  language  used  in  Opinion  of  the  Justices  of 
the  Supreme  Court  to  the  House  of  Representatives,  150  Mass.  592, 
597.  In  rendering  the  oi)inion  that  the  legislature  has  the  power  under 
the  Constitution  to  authorize  the  cities  and  towns  within  the  Common- 
wealth to  manufacture  and  distribute  gas  or  electric  light  for  use  in 
their  public  streets  and  buildings,  and  for  sale  to  their  inhabitants,  it 
is  said  :  "  If  gas  or  electricity  is  to  be  generall}'  used  in  a  city  or  town 
it  must  be  furnished  by  private  companies  or  by  the  municipality,  and 
it  cannot  be  distributed  without  the  use  of  the  public  streets,  or  the 
exercise  of  the  right  of  eminent  domain.  ...  If  the  legislature  is  of 
opinion  that  the  common  convenience  and  welfare  of  the  inhabitants  of 
cities  or  towns  will  be  promoted  by  conferring  upon  the  municipalities 
the  power  of  manufacturing  and  distributing  gas  or  electricity  for  the 
purpose  of  furnishing  light  to  their  inhabitants,  we  think  that  the  legis- 
lature can  confer  the  power." 

Heat  being  an  agent  or  principle  indispensable  to  the  health,  com- 
fort, and  convenience  of  ever}'  inhabitant  of  our  cities,  we  do  not  see 
why,  through  the  medium  of  natural  gas,  it  may  not  be  as  much  a 
public  service  to  furnish  it  to  the  citizens  as  to  furnish  water.  It  is 
inquired,  why  do  not  municipalities  also  purchase  coal  mines,  and  issue 
their  bonds  therefor,  and  embark  in  the  business  of  mining  and  selling 
coal  to  private  consumers?  An  obvious  reply  is  that  coal  and  other 
fuel  ma}'  be  carried  to  the  consumer  b}'  the  ordinary  cliannels  of  trans- 
portation, and  at  comparatively  moderate  expense,  while,  in  conveying 
natural  gas,  streets  must  be  opened,  pipes  laid,  works  erected,  fixtures 


CHAP,  v.]  STATE   V.    CITY   OF   TOLEDO.  915 

and  inachiuery  purcbasetl,  and  other  expenses  incurred,  beyond  the 
enterprise  and  capital  of  an  individual.  The  objection  that  a  work  or 
undertaking  prosecuted  by  a  city  at  the  public  expense  does  not  benelit 
some  individuals  will  not  deprive  it  of  the  character  of  a  public  service, 
or  of  an  object  for  public  purposes.  Some  individuals,  as  we  have 
before  suggested,  may  be  incidentalh'  benefited  more  than  others  ;  and 
some,  from  their  place  of  residence  in  a  cit}-,  ma}'  not  use  the  work  at 
all.  It  is  sufficient  "  if  every  inhabitant  who  is  so  situated  that  he  can 
use  it  has  the  same  right  to  use  it  as  the  other  inhabitants." 

The  source  of  supply-  of  natural  gas  to  the  people  of  Toledo,  it  is 
said,  is  beyond  the  corporate  limits  ;  but  the  rigiit  of  a  city  to  aid  in 
the  construction  of  public  works  is  not  necessaril}'  confined  to  those 
works  which  are  within  the  localitj-  wliose  people  are  to  be  taxed  for 
them.  It  is  the  corporate  interest  of  the  cit}-  which  determines  the  right 
to  tax  her  people,  and  not  the  location  of  the  public  improvement. 
Sharpless  v.  Mayor ^  etc.,  21  Pa.  St.  147. 

It  is  conceded  that  if  the  Act  of  January  22,  1<S89,  had  authorized 
cities  to  procure  natural  gas  soleh'  for  their  own  use  and  consumption 
—  or  for  use  onlj'  in  public  buildings  and  places  —  it  would  not  be  open 
to  constitutional  objection  ;  but,  as  the  Act  provides  for  sui)plying  cities 
and  the  citizens  thereof  with  natural  gas  for  public  and  private  use  and 
consumption,  it  is  urged  that  the  manifest  design  of  the  Act  is  to  enable 
the  city  to  furnish  fuel  to  individual  consumers  for  private  use  at  a 
cheaper  rate  than  they  could  obtain  it  from  other  sources  ;  and  that, 
such  being  its  main  object,  the  cit}'  cannot  exercise  the  taxing  power 
in  promoting  a  purpose  that  is  essentiall}-  private,  as  distinguished  from 
one  that  is  public.  We  do  not  so  read  the  Act.  In  our  view,  it  may 
as  well  be  urged  that  to  supply  the  city  and  public  buildings  witli 
natural  gas  was  the  primary  object  of  the  Act,  and  the  furnishing  of  it 
to  citizens  merel}'  incidental  thereto,  as  that  to  supplj'  individuals  was 
the  primar}'  object,  and  the  supplying  of  the  cit}'  and  public  buildings 
onlj'  incidental.  But,  gi'anting  that  it  entered  into  the  design  of  the 
legislature  to  cheapen  the  price  of  natural  gas,  it  was  to  cheapen  it  for 
all  the  inhabitants  of  the  city, and  that  fact  would  become  significant  as 
rendering  the  public  purpose  of  the  Act  more  useful  and  effective. 

There  is  a  class  of  cases  to  which  our  attention  has  been  called,  in 
which  are  considered  the  legislative  authority  under  the  Constitution  to 
pass  laws  enabling  cities  to  assist  individuals  or  corporations  to  estab- 
lish or  carr}'  on  manufacturing  of  various  kinds  within  or  v/ithout  the 
corporate  limits  ;  but  those  cases  bear  but  a  slight  analogy  to  the  one 
before  us.  Among  them,  and  of  a  cognate  character,  is  tliat  o{  Asso- 
ciation V.  Topeka^  20  Wall.  655.  In  that  case  the  Citizens'  Savings' 
&  Loan  Association  of  Cleveland  brought  their  action  in  the  court 
below  against  the  city  of  Topeka  on  coupons  for  interests  attached  to 
bonds  of  that  city.  The  bonds,  on  their  face,  purported  to  be  payable 
to  the  King  Wrought-Iron  Bridge  Manufacturing"  &  Iron  Works  Com- 
pany of  Topeka,  to  aid  and  encourngo  that  company  in  establishing  and 


916  STATE   V.    CITY    OF   TOLEDO.  [CIIAP.  V. 

opeiatiug  bridge  shops  in  the  cit}-  of  Topeka.  The  citj-  issued  100 
of  those  bonds  for  §1,000  each  as  a  donation,  to  encourage  that  com- 
pany in  its  design  of  establishing  a  manufactory-  of  iron  bridges  in  that 
city.  It  was  properly  held  that  there  was  no  power  in  the  legislature 
to  pass  a  statute  authorizing  the  levy  of  taxes  in  aid  of  such  a  purpose. 
The  avowed  object  in  issuing  the  bonds  was  to  aid  a  private  enterprise, 
to  promote  the  interests  of  a  private  company  designated  by  name, 
and  singled  out  from  all  others.  When  the  legislature  authorized  the 
city  to  contract  the  debt,  the  authority  was  implied  to  levy  such  taxes 
as  were  necessary  to  pay  the  debt.  The  authority  was  thus  given, 
under  the  guise  of  taxation  to  pay  the  bonds,  to  reach  the  property  of 
the  citizens,  and  use  it  in  aid  of  a  private  manufacturing  company. 
The  benefit  accruing  to  the  public,  if  an}-,  was  at  most  incidental,  and 
might  prove  to  be  remote  and  speculative.  The  proprietors  of  the  iron- 
works were  under  no  legal  obligations  to  render  any  duty  or  service 
whatever  to  the  municipality  or  State.  Nor  could  the  State  or  city  com- 
pel them  to  complete  or  operate  the  works  or  prevent  their  removal  at 
pleasure  to  some  other  locality. 

The  natural  gas  works  for  which  Toledo  has  issued  its  bonds,  are 
owned  and  controlled  by  tlie  municipality,  and  not  by  individuals  ;  but 
every  citizen,  as  a  member  of  the  community,  has  an  interest  in  their 
construction,  management,  and  maintenance.  The  advantage  resulting 
from  them  is  tendered  on  equal  terms  to  exery  inhabitant  of  the  cit}-, 
and  the  terms  and  conditions  upon  which  the  benefits  are  to  be  en- 
joyed by  the  whole  people  are  dependent  largely  upon  the  action  of  the 
people  themselves.  In  our  judgment,  the  taxation  authorized  by  the 
General  Assembly  for  the  payment  of  the  bonds  issued  was  in  no  wise 
to  subserve  a  private  purpose,  when  used  as  language  of  constitutional 
limitation.  The  establishment  of  natural  gas  works  by  municipal  cor- 
porations, with  the  imposition  of  taxes  to  pay  the  cost  thereof,  may  be 
a  new  object  of  municipal  policy.  But  in  deciding  whether  in  a  given 
case  the  object  for  which  taxes  are  assessed  is  a  public  or  private  pur- 
pose we  cannot  leave  out  of  view  the  progress  of  society,  the  change 
of  manners  and  customs,  and  the  development  and  growth  of  new 
wants,  natural  and  artificial,  which  ma}-  from  time  to  time  call  for  a 
new  exercise  of  legislative  power.  And  in  deciding  whether  such  taxes 
shall  be  levied  for  the  new  purposes  that  have  arisen  we  should  not, 
we  think,  be  bound  by  an  inexorable  rule  that  would  embrace  only 
those  objects  for  which  taxes  have  been  customarily  and  by  long  course 
of  legislation  levied.   .  .  . 

Judgment  for  defendant.,  and  petition  dismissed} 

^  Compare  Cooley,  Princ.  Const.  Law,  2d  ed.  57;  Talbot  v.  Hudson,  16  Gray,  417, 
ante,  p.  156  ;  5  Harv.  Law  Rev.  30.  —  Ed. 


CHAP,  v.]  COMMON WEALTPI   V.    lIAxMlLTON   MANUF.    CO.  917 

COMMONWEALTH   v.  HAMILTON   MANUFACTURING  '^^  . 

COMPANY.  ,  v.a.^..-^-t^ 

Supreme  Judicial  Coukt  of  Massachusetts.     1876. 

Complaint  under  the  St.  of  187-i,  c.  221,  to  the  Police  Court  of  Lowell  j2^it3J»-^»^*-^ 
agaiust  a  cotton  and  woollen  manufacturiu.o;  coui|)auy,  for  eniploying  an  o  ,  .^_^ 
unmarried  woman  named  Mary  Shirley,  who  was  over  twenty-one  years  W  . 

of  age,  to  work  in  the  defendant's  manufacturing;  establisliment  in  the  Y^X  ^*^^^^^ 
manufacture  of  cotton  goods  for  sixty-four  hours  per  week.     The  defend-  J)^^^:-^^-^ 
ant  demurred  to  the  complaint  upon  the  follow  lug  grounds  :   ''  1.  That  _  ^~Y  ^  ^ 
the    St.  of  1874,  c.   221,    is    unconstitutional  and   void.     2.  Tiiat  the  ^^ 
defendant,  having  been  incorporated  under  a  charter  prior  to  the  pas-    ^M^a^J^ 
sage  of  the  statute  under  which  the  complaint  was  made,  the  statute   -Jj^  ojb^' 
was,  as  applied  to  the  defendant,  in  violation  of  the  obligation  of  the 
Commonwealth  to  the  defendant   assumed   m  the   charter,   and   was  ^^frj. 

therefore  void  and  of  no  force  and  effect  against  the  defendant."     The  "''^f^         -, 
demurrer  was  overruled ;    the  defendant  was  found  guilty  ;    and  ap-'<*-*  "^  '^J^t^A 
pealed  to  the  Superior  Court,  where  the  demurrer  was  overruled  and  ^^  ^ 
the  judgment  of  the   Police   Court  affirmed  ;    and  the  defendant  ap-    (5^J*^  ^ 
pealed  to  this  court.        ^  AAycje^vrf^"^ 

C.  B.  Goodrich  and  F.  T.  Greenhalge^  for  the  defendant. 

C.    It.    Train,  Attorney-General,    and    W.    G.    Loving^   Assistant  '^^'^^  ^ 
Attorney-General,  for  the  Commonwealth.  xvtt^  t^ 

Lord,  J.     The  defendant  contends  that  the  St.  of  1874,  c.  221,  under  ^jpyiA    .^^ 
which  the  complaint  in  this  case  is  made,  is  unconstitutional  and  void.      /  ,        l. 
The  provision,  which  it  is  alleged  is  without  authorit}'  under  the  Con-  ^      ,  , 

stitution,  is,  that  "  no  minor,  under  the  age  of  eighteen  years,  and  no'r^^'^^^.i' 
woman  over  that  age,  shall  be  employed  in  laboring  by  any  person,  -J^  ^£^  •^ 
firm  or  corporation  in  any  manufacturing  establishment  in  this  Com-     9j,^,ia,,fvla^ 
monwealth  more   tliaa  ten  hours  in  any  one  day,"   except  in  certain     /  .         ^ 
cases,  and  that  ^'  in  no  case  shall  the  hours  of  labor  exceed  sixt}"  per  '^""^ 
week."  -1.^^  ^ 

The  learned  counsel  for  the  defendant  in  his  argument  did  not  refer  —'LJUxJ^  iMk 
to  any  particular  clause  of  the  Constitution  to  which  this  provision  is  OgauX.  ^ 
repugnant.  His  general  proposition  was,  that  the  defendant's  Act  of  //  , 
Incorporation,  St.  1824,  c.  44,  is  a  contract  with  the  Commonwealth, r;<^^  "* 
and  that  this  Act  impairs  that  contract.  The  contract,  it  is  claimed,  -yi^x^t^  t^> 
is  an  implied  one ;  that  is,  an  Act  of  Incorporation  to  manufacture  _i  /«>-»'t~ 
cotton  and  woollen  goods  by  necessary  imijlication  confers  upon  the  '  jL^uA^ 
corporation  the  legal  capacity  to  contract  for  all  the  labor  needful  VU^-^^^T"^ 
for  this  work.  If  tliis  is  conceded  to  tlie  fullest  extent,  it  is  only  a  -y^fr  Hak  VJ 
contract  with  the  corporation  that  it  may  contract  for  all  lawful  laTjor.  -t/  f  j  -f-^ 
There  is  no  contract  imijliud  that  such  labor  as  was  then  forbidden  by 


'   AAA. 


^j^^vtrU     X.  .^    W^.>,vw  -to-V..^>«V     Q,^     n.v-.c--^  .-{L^/wv^  «^-^Ar<^^  <^  -^  (tMur^^. 
0  918  COMMONWEALTH   V.    PEUKY.  [CHAP.  V. 

J^\ai  - 

iuaJ  law  mi.ubt  be  cmi)lo\x-d  by  the  dcrencluiit ;  or  that  the  General  Court 

V     mJ^        would  nut  pertbnu  ila  constitutional  duty  of  making-  such  wholesome  j 

■  A  laws  thereatter  as  the  public  welfare  should  demand.      The  la\v,  there-  v^ 

4i£  K/OAM-     I'^^j.g^  violates  no  contract  with  the  del'endant ;  and  the  only  other  question  jA 

'ti    i/ici'        is,  whether   it  is  in  violation  of  any  ri;L2,ht  reserved  under  the  Constitu- 
!:i<<ii     tion  to  the  individual  citizen.     Upon  this  question,  there  seems  to  be 
/7  ,  ,    no  room  for  debate.  /  It  does  not  forbid  any  jjcrson,  iirm  or  corpora- 
-^■^^^     tion  from  employin.ty  as  many  persons  or  as  much  labor  as  such  person/ 
'AM/j^^  '      tirm  or  corporation   may  desire^    nor  does  it  forbid  any  i^erson  to  workfy  \o? 

/     '^  as  many  hours  a  day  or  a  week  as  he  chooses.     It  merely  provides  «^  "^ 

'*^-  that  in  an  employment,  which   the    legislature  has  evidently  deemed 

to  some  extent  dangerous  to  health,  no  person  shall  be  engaged  in 
labor  more  than  ten  hours  a  day  or  sixty  hours  a  week.  There  can 
be  no  doubt  that  such  leoislation  may  be  maintained  either  as  a  health 
or  police  regulation,  if  it  were  necessary  to  rej^ort  to  cither  of  those 
sources  for  power.  This  principle  has  been  so  frequentl}'  recognized 
in  this  Commonwealth  that  reference  to  the  decisions  is  unnecessar}'.  jJ*     ^ 

It  is  also  said  that  the  law  violates  the  right  of  Mary  Shirle}-  to  ^  ^ 
labor  in  accordance  with  her  own  judgment  as  to  the  number  of  hours 
she  shall  work.  The  obvious  and  conclusive  reply  to  this  is,  that  the  law 
does  not  limit  her  right  to  labor  as  many  hours  per  day  or  per  week  as 
she  may  desire  ;  it  does  not  in  terms  forbid  her  laboring  in  any  par- 
ticular business  or  occupation  as  many  hours  per  day  or  per  week,  as  she 
may  desire;  it  merely  prohibits  her  being  employed  continuously  in 
the  same  service  more  than  a  certain  number  of  hours  per  day  or  week, 
which  is  so  clearly  within  the  power  of  the  legislature,  that  it  be- 
comes unnecessary  to  inquire  whether  it  is  a  matter  of  grievance  of 
which  this  defendant  has  the  right  to  complain. 


V 


ixX/.     AA^  (Xy^   yn^eCuS^'C  -|^1 


Judgment  a  firmed. 


CCBIMONWEALTH   v.      PERRY. 


I  .       .  ^-4-'  Supreme  Judicial  Court  of  Massachusetts.     1891. 


(^       yr  [155  Mass.  117.] 

^^^W^*^^  Indictment,  on  the  St.  of  1891,  c.  125,  in  two  counts,  alleging  in  the 
■AM^MtA-  first  count  that  the  defendant  on  July  13,  1891,  did  ''  impose  and 
,ti«Jx~U<d  exact  a  fine,  to  wit,  a  fine  of  forty  cents,"  upon  one  Fielding,  then 
employed  by  liim  in  his  factory  in  Dudley  in  weaving  woollen  cloth, 
'{oAMiM^  t^for  imperfections  that  had  arisen  during  the  process  of  weaving 
L/UK5  ^  in  the  cloth  and  material  woven  by  the  said  "  Fielding,  while  he  was 
'  />       so  employed  and  engaged  at  weaving ;  and  in  the  second  count  that 

■^^■^^  ^       the  defendant  at  the  same  time  and  place  did  "  withhold  a  certain  part 
LAAn^  of  the  wages  of  said"  Fielding  while  so  employed  and  engaged,   "to 

wit,  the  sum  of  forty  cents  for  and  on  account  of  imperfections "  in 
the  weaving  of  Fielding,  as  set  out  in  the  first  count 


JU  Dk 


)  ti^iCL         tne  weavmg  oi  rieicung,  as  set  oui  lu  luc  ui&t  couut.  .        .         f--, 


CHAP,  v.]  COMMONWEALTH   V.    PFRRY.  919   oSLd~U)  ^^ 

In  the  Superior  Court,  before  the  jur}-  were  imi)anellecl,  the  defend-  ^^^^^t^U.  t£it. 
ant  moved  to  quash  the  indictment  for  the  following  reasons.  ...  _  a\*J 
[These  are  omitted  here,  as  not  material  to  the  opinion  of  the  court.]      ''^'^         /-J^ 

Thompson,  J.,  overruled  this  motion.  '^  ,'?-*< ^eV^i^ 

At  the  trial  the  following  facts  were  agreed.     The  defendant  is  a  yuict.'^^-^''^'^ 
woollen  manufacturer  in  the  town  of  Dudley,  and  enii)loyed  among  other    jC-to^^^^*^ 
operatives  about  forty  weavers.     On  May  18,  1891.  the  defendant  en-     a,<^^  zX  ^ 
tered  into  an  agreement  in  writing  under  seal  with  such  weavers,  wherebv   . /ijLuijLdt  -^ 
JQ  consideration  of  the  defendant's  employing  them  and  paying  them  their     ^        ■   /;,  • 
wages  monthlv  at  certain  fixed  rates,  they  agreed  among  other  things  to  t2«/t<^^t^ 
accept  his  emfjlovment  and  stjrve  him  faithfully  during  such  employment    ajLOJuiAJ-j 
and  to  accept  as  wages  "  for  all  imperfect  weaving  work  such  reduced  -^^g^^  a.,^ 
rates  and  prices,  and  at  such  rates  and  prices  less  than  those  paid  for    i     ^  j 
perfect  work,  as  the  said  Perry  shall  deem  i-easonable  and  proper  com-  (jf       t     f- 
pensation  for  imperfections  in  weaving,  or  imperfect  work,  and  a  fair  /        /  «    W 
compensation  for  the  work  actually  done,"  and  "  to  pay  to  said  Perry    ^^^^ 
monthly,  from  the  wages  earned  in  his  employ  in  weaving,  the  amount    Vkp'^-'^^^^^ 
of  such  deductions  for  imperfect  work  and  imperfections  as  said  Perry    Ihyu^^*-^^'^ 
on  inspection  shall  find  and  judge  due  him  for  the  damage,  loss,  and  J^  [;(zx  C^a*> 
injury  caused  by  such  imperfect  weaving,  or  imperfections,  —  wliether     '^    u        ^ 
such  deductions  be  called  '  fines,'  '  deductions,'  or  be  called  b^-  any  -. 

other  name,  —  which  damage,  fines,  or  deductions  for  such  imperfect   Aa^'^^^cm.    ^ 
weaving  and  imperfections  are  hereby  assumed,  and  covenanted   and-^y^'^^   2^ 
promised  to  be  paid  to  said  Perry  from  wages  earned  in  said  employ-      ^QJh^'^' 
ment,    as  com|)ensation  for  the  loss  and  injury  caused  to  said  Perry  '^"""^ 

thereby."     Among  the  weavers  signing  this  agreement  with  the  defend-    '^■*-*-^^ 
ant  was  the  Fielding  referred   to  in  the  indictment,  and    he  had  re-  -'t/x^cc^tlL   *^ 
mained  in  the  defendant's  emplo}'  continuously  since  the  date  of  the    ajtjuu^^ 
agreement.     The  wages  earned  by  Fielding  in  June,  1891,  would  have    .  jjJUh 

amounted  to  $21.53,  if  the  cloth  woven  by  him  had  been  free  from  im-      ^ 
perfections,  but  by  reason  of  such  imperfections,  which  arose  during   ~{X(XMA   ^^^ 
the  process  of  weaving  and  which  injured  its  merchantable  value,  the   ^^a^Jp"^^ 
defendant  deducted  therefrom  and  withheld  from  him  the  sum  of  fif-    /  /  r    dljb^^ 
teen  cents  and  paid  him  for  his  work  the  balance  of  $21.38.     This        .  «0 

balance  was  a  reasonable  compensation  for  the  work   actually  done  l^y-'t^'^^y  ^^^ 
Fielding  during  that  month,  and  the  fifteen  cents  so  deducted  did  not    L,,^  X <i^t*<-^ 
represent  the  actual  damage  done  to  the  defendant  by  the   imi^erfect    0   -    /, 
work  done  by  him.  yt^^U^J 

The  defendant  requested  the  judge  to  rule,  among  other  things,  ns  _  /^lUtZ'^  -^ 


follows  :  "  Chapter  125  of  the  Acts  of  the  Legislature  of  the  j-ear  1891,      ,     " ^-^iu 
under  the  provisions  of  which  the  defendant  was  indicted,  is  uncon-  "/         .    /y. 
stitutional  and  void,  es[)eciall3'  because  it  is  in  violation  of  the   pro-  AaX  ptu   '^ 
visions  thereof  against  granting  special  advantages  to  a  class  of  the    (ijfyuik, 
people  as  distinguished  or  distinct  from  the  community,  and  because     ^      ^ 
also  it  is  repugnant  to  other  fundamental  principles,  thereof."  7  5  ^^ 

The  judge  refused  so  to  rule,  and  instructed  tlie  jury,  as  matter  of  xvf^c^.  'p^ 
law,  that,  upon  the  agreed  facts,  the  jury  would  be  authorized  to  find  ,         ^ 

the  defendant  guilt}',   and  submitted  the  case  to  them.       Xi^ '^ytA-^^'^''^^'^^*^^  *^"^y 


^<^v>^     'AXy^aXOL^.-jbuurf.    JIm    ttu^    Ou.^^-      "tC^      JLo^^^^ 


920  COMMONWEALTH    V.    I'ERUY.  [cHAP.  V. 

tj.  cx/tr^-^      The  jury  returned  ii  verdict  of  guilty  ;    uiid  the  defendant  alleged 

,  ^      ^      exeeptions. 
(.    vA-  Ak  ^.  J.  Bartholomew,  for  the  defendant. 

!^;   /uoJtM-Ae^X    A.  E.  Pillshury,  Attorney-General,  for  the  Commonwealth. 
>    -*j  Knowlton,  J.     This  is  an  indictment  under  the  St.  of  1891,  c.  12o, 

..  the  first  section  of  which  is  as  follows:     ^''No  employer  shall  im|)ose 

r^  b  a  fine  upon   or  withhold  the  wages  or  any  i)art  of  the  wages  of  an 

i    (Xc-^        ^u^l^loyce  engaged  at  weaving  for  imperfections  that  may  arise  during 
^  <j       the  process  of  weaving."     Section  2  provides  a  punishment  for  a  viola- 
vv-c        **^    j-Jqjj  Qf  i^i^g  provisions  of  the  statute  by  the  imposition  of  a  fine  of  not 
i  Vb^  exceeding  one  hundred  dollars  for  the  first  offence,  and  not  exceeding 

^^^j^,^,^ three  hundred  dollars  for  the  second  or  any  subsequent  offence. 

The  Act  recognizes  the  fact  that  imperfections  may  arise  in  weaving 
cloth,  and  it  is  evident  that  a  common  cause  of  such  imperfections  m ay 
be  the  negligence  or  want  of  skill  of  the  weaver.  When  an  empUner 
has  contracted  with  his  employee  foi"  the  exercise  of  skill  and  care  in 
tending  looms,  it  forbids  the  withholding  of  any  part  of  the  contract 
price  for  non-performance  of  the  contract,  and  seeks  to  compel  the 
payment  of  the  same  price  for  work  which  in  quality  falls  far  short  of 
the  requirements  of  the  contract  as  for  that  which  is  properly  done. 
It  does  not  purport  to  preclude  the  emi:)lover  from  bringing  a  suit  fo r 
Siyjy^'^^  damages  against  the  employee  for  a  breach  of  the  contract,  but  he 
^  (  must  pay  in  the  first  instance  the  wages  to  which  the  employee  would 

have  been  entitled  if  he  had  done  such  work  as  the  contract  called  for. 


Ifi-ay^i-^^-^-^  It  is  obvious  that  a  suit  for  damages  against  an  employee  for  failure  to 

l(jj  (/lAJL .  do^oqd^  work  would  be  in  most  cases  of  no  practical  value  to  the  em- 

,  .  plover,  and  a  theoretical  remedy  of  this  sort  does  not  justify  a  require- 

-  ^^*W*^'  ment  that  a  party  to  such  a  contract  shall  pay  the   consideration  for 

I.  pjbXi  performance  of  it  when  it  has  not  been  performed.     The  defendant 

fj    f  contends  that  the  statute  is  unconstitutional^  and  it  becomes  necessarj' 


^i) 


to  consider  the  question  thus  presented. 

The  employer  is  forbidden  either  to  impose  a  fine  or  to  withhold  the 

'   <  A      wages  or  any  part  of  them.     If  the  Act  went  no  further  than  to  forbid 

^^'^^     0^         the  imposition  of  a  fine  by  an  employer  for  imperfect  work,  it  might  be 

iU**4?^M^^    sustained  as  within  the  legislative  power  conferred  by  the  Constitution 

-A^.i^-    of  this  Commonwealth,  in  chap.  1,  sect.  1,  art.  4,  which  authorizes  the 

*  I         General  Court  "  to  make,  ordain,  and  establish  all  manner  of  wholesome 

tA.  v*/VYV\        ^^^^  reasonable  orders,  laws,  statutes,  and  ordinances,  directions  and 

t*jL  .  instructions,  either  with  penalties  or  without,  so  as  the  same  be  not  re- 

j  P        ,  /»      pugnant  or  conti'ary  to  this  Constitution,  as  they  shall  judge  to  be  for 

'r\iL  MHii ■  the  good  and  welfare  of  this  Commonwealth,  and  for  the  government 

i£^         and  ordering  thereof,  and  of  the  subjects  of  the  same."     It  might  well 

be  held  that,  if  the  legislature  should  determine  it  to  be  for  the  best 

'lyx^^n-^^      interests  of  the  people  that  a  certain  class  of  employees  should  not  be 

^  ♦/  permitted  to  subject  themselves  to  an   arbitrary  imposition   of  a  fine 

or  penalty  In'  their  cmi)loycr,  it  miglit  ])ass  a  law  to  that  effect.     But 

WAAx  y\AAA.  -  ^vt^Qi^  the  attempt  is  to  compel  payment  under  a  contract  of  the  price 


-    K-i/v-  ^-^i-vnoc—  A--w^  .  J-^x-^-aJ^  ^vO^-€</lx^.^   o  OLA^    C^ 


CHAP.  V.l  COMMONWEALTH   t".    PERRY.  921    '         ^    U 

for  o'ood  work  when  oul.y  inferior  work  is  done,  a  different  question  is     jc/«-^*-^  M-^ 
presented.  ^^U,   iu.  a^ 

Tliere  are  certain  fundamental  rights  of  ever}'  citizen  wliich  are  rec-      o^oicf/iAM 
ognized  in  the  organic  law  of  all  our  free  American  States.     A  statute       /^  ' 
which  violates  any  of  these  rights  is  unconstitutional  and  void,  even 
though  the  enactment  of  it  is  not  expressly  forbidden.     Article  1  of  the     A^L^-irvt  < 
Declaration  of  Eights  in  the  Constitution  of  Massachusetts  enumerates      ^  yii^'un^ 
among  the  natural,  inalienable  rights  of  men  the  right  "of  acquiring,      ^^.^iXua^y 
possessing,  and   protecting  property."     Article   1,    §  10,   of  the  Con-     ^  , 
stitution  of  the  United  States  provides,  among  other  things,  that  no    c^^""^^      ^ 
State    shall   pass   any  "law   impairing   the   obligation   of  contracts."      p^'7'''^^ 
TJic  right  to  acquire,  i)0ssess,  and  protect  property  includes  the  I'ight     ci.-&^Curn^ 
to  make  reasonable  contracts,  which  shall  be  under  tlie  protection  of    ^^'^-^^^^ 
the  law.  'y3    -/    ^ 

The  manufacture  of  cloth  is  an  important  industry,  essential  to  the   '  '^''"^VLCiC 
welfare  of  the  community.     There  is  no  reason  why  men  should  not  \iQ^\j\^  ,sALi. 
/J  permitted  to  engage  in  it.     Indeed,  the  statute  before  us  recognizes  it    ■sjjJ,S^j£h 

J/fU  T^    as  a  legitimate  business,  into  which  anybody  niaj'  freel}'  enter.     The        ^f 

ri^ht  to  employ  weavers,  and  to  make  proper  contracts  with  them,  is  y^^^Xju^^A 

I      -     there7oi-e  protected  by  our_Constitution  ;  anct  a  "statiite  which  forbids  ^y.  -L^  /^ 

t/^  -i/^the  majving  of  such  contracts,  or  attempts  to  nuhify  them,  or  impair  the  /^  ^ 

J     U-    obligation  of  them,  violates  fundamental  principles  of  right  which  are-'C^v^^X^^k^ 

exuressly  recognized_iii.oui'  Constitution.     If  the  statute  is  held  to  per- 
•     -fs      mit  a  manufacturer  to  hire  weavers,  and  agree  to  pay  tliem  a  certain  ]^         " 

■     price  per  yard  for  weaving  cloth  with  proper  skill  and  care,  it  renders  ilAHXXA    H. 
the  contract  of  no  effect  when  it  requires  him,  under  a  penalty,  to  pay  j/  ^    -f--i— 
the  contract  price  if  the  employee  does  his  work  negligently  and  fails  to  '      ' 
perform  his  contract.     For  it  is  an  essential  element  of  such  a  contract    /U^c-*^  A 
that  full  payment  is  to  be  made  only  when  the  contract  is  performed.     If    h^v^-^^^ 
it  be  held  to  forbid  the  making  of  such  contracts,  and  to  permit  the  hir-    t^^    c^a-^iya^ 
ing  of  weavers  onlv  upon  terms  that  prompt  payment  shall  be  made  of      y        /  ^ 
the  price  for  good  work,  however  badly  their  work  may  be  done,  and     /"^-^^ 
that  the  remedy  of  the  employer  for  their  derelictions  shall  be  onlv  by  y\A<M) Mf^ 
suits  against  them  for  damages,  it  is  an  interference  with  the  right  to     VzjxUdtX.^ 
make  reasonable  and  proi)er  contracts  in  conducting  a  legitimate  busi-    w  ^ 

ness,  which  the  Constitution  guarantees  to  every  one  when  it  declares  2.c.<A~ic^ 
that  he  has  a  "natural,  essential,  and  unalienable"  right  of  ''acquiring, 
possessing,  and  protecting  proDcrtv."  Whichever  interpretation  be 
given  to  this  part  of  the  Act,  we  are  of  opinion  that  it  is  unconstitu- 
tional ;  and  inasmuch  as  the  instructions  of  the  judge  permitted  the  jury 
to  find  the  defendant  guilty  on  the  second  count,  a  new  trial  must  be 
granted. 

We  do  not  deem  it  important  to  consider  the  other  exceptions  taken 
bj'  the  defendant,  further  than  to  say  that  we  are  of  opinion  that  the     ■^'f^^/ux^*- 
motion  to  quash  was  rightly  overruled. 

For  cases  supporting  the  view  we  have  taken,  and  for  a  further  dis- 
cussion of  the  principles  involved  in  the  decision,  see  Godcharles  v. 


UM/' 


9-!2  COMMONWEALTH    V.    PERRY.  [CIIAP.  V. 

Wigeman,  113  Pcnn.  St.  431  ;  State  v.  Goodwill,  33  \Y.  Va.  179  ;  la 
re  Jacobs,  98  N.  Y.  98  ;  Feo2)le  v.  3farx,  99  N.  Y.  377  ;  People  v. 
Gillson,  109  N.  Y.  389  ;  Millett  v.  Peojjle,  117  111.  294. 

Exceptions  sustained. 

Holmes,  J.  I  have  the  misfortune  to  disagree  with  iny  brethren.  I 
have  submitted  mj'  views  to  them  at  length,  and,  considering  the  im- 
portance of  the  question,  feel  bound  to  make  public  a  brief  statement, 
notwithstanding  the  respect  and  deference  I  feel  for  the  judgment  of 
those  with  w^hom  I  disagree. 

In  the  first  place,  if  the  statute  is  unconstitutional,  as  construed  b}' 
the  majoritv,  I  think  it  should  be  construed  more  narrowly  and  literally, 
so  as  to  save  it.  Taking  it  literally,  it  is  not  infringed,  and  there  is  no 
withholding  of  wages,  when  the  emi)loycr  only  promises  to  pny  a  rea- 
sonable price  for  imperfect  work ,  or  a  price  less  than  the  ])rice  paid  for 
perfect  work,  and  does  pay  that  price  in  fact.  But  I  agree  that  the  Act 
should  be  construed  more  broadly,  and  should  be  taken  to  prohibit  pal- 
pable evasions,  because  I  am  of  opinion  that  even  so  construed  it  is 
constitutional,  so  far  as  any  argument  goes  which  I  have  heard.  The 
prohibition,  if  any,  must  be  found  in  the  words  of  the  Constitution, 
either  expressed  or  implied  upon  a  fair  and  historical  construction. 
What  words  of  the  United  States  or  State  Constitution  are  relied  on? 
The  statute  cannot  be  said  to  impair  the  obligation  of  contracts  made 
after  it  went  into  effect.  Lehirjh  Water  Co.  v.  Easton,  121  U.  S.  388, 
391.  So  far  as  has  been  pointed  out  to  me,  I  do  not  see  that  it  inter- 
feres with  the  right  of  acquiring,  possessing,  and  protecting  pro|)erty 
anv  more  than  the  laws  against  usurv  or  gaming.  In  truth,  I  dojiot 
think  that  that  clause  of  the  Bill  of  Rights  has  any  application.  JX_ 
might  be  urged,  perhaps,  that  the  power  to  make  reasonable  laws  im - 
pliedly  prohibits  the  making  of  unreasonable  ones,  and  that  this  law  is 
unreasonable.  If  I  assume  that  this  construction  of  the  Constitution  is 
correct,  and  that,  speaking  as  a  political  economist,  I  should  agree  in 
condemning  the  law,  still  I  should  not  be  willing  or  think  myself  author- 
ized to  overturn  legislation  on  that  ground,  unless  I  thought  that  an 
honest  difference  of  opinion  was  impossible,  or  pretty  nearly  so. 

But  if  the  statute  did  no  more  than  to  abolish  in  certain  cases  con- 
tracts for  a  quantum  meruit.,  and  recoupment  for  defective  quality  not 
amounting  to  a  failure  of  consideration,  I  suppose  that  it  only  would 
put  an  end  to  what  are,  relatively  speaking,  innovations  in  the  common 
law,  and  I  know  of  nothing  to  hinder  it.  This,  however,  is  not  all.  I 
do  not  confine  myself  to  technical  considerations.  I  sup|)Ose  that  this 
Act  was  passed  because  the  operatives,  or  some  of  them,  thought  that 
they  were  often  cheated  out  of  a  part  of  their  wages  under  a  false  pre- 
tence that  the  work  done  by  them  was  imperfect,  and  persuaded  the 
legislature  that  their  view  was  true.  If  their  view  w\as  true,  I  cannot 
doubt  that  the  legislature  had  the  riglit  to  deprive  the  em|)loyers  of  an 
honest  tool  which  they  were  using  for  a  dishonest  purpose,  and  I  cannot 


CHAP,  v.]  BRACEVILLE    COAL   CO.    V.   THE   PEOPLE.  923 

pronounce  the  legislation  void,  n.s  based  on  a  false  assumption,  since 
I  know  nothing  about  the  matter  one  way  or  the  other.  The  statute, 
however  construed,  leaves  the  employers  their  remedy  for  imperfect 
work  by  action.  I  doubt  if  we  arc  at  liberty  to  consider  the  objection 
that  this  remedy  is  practically  worthless  ;  but  if  we  are,  then  the  same 
objection  is  equally  true,  although  for  different  i-easons,  if  the  workmen 
are  left  to  theif  remedy  against  their  emplo.yers  for  wages  wrongfully 
withheld.  M3'  view  seems  to  me  to  be  favored  by  Hancock  v.  Yaden, 
121  Ind.  366,  and  Slaughter- Mouse  Cases,  16  Wall.  36,  80,  81.^ 


BRACEVILLE   COAL   CO.   v.   THE  PEOPlK^^Uvo^  .tx/tXA.-l--   ^ 
Supreme  Court  of  Illinois.     1893.  ' 

Appeal  from  the  County  Court  of  Grundy  County  ;  the  Hon.  K.^.n 
Jordan,  Judge,  presiduig.  On 

The  appellant  was  tried  before  a  justice  of  the  peace,  and  found  guilty  '^-^^-^^-^'^-'-^ 
of  violating  an  Act  of  the  Legislature  entitled  "  An  Act  to  provide  for  '-^-*-*'€^  -^ 
the  Weekly  Payment  of  Wages  by  Corporations,"  approved  April  23,-  j-iX-vv^  ^ 
1891,  and  the  penalty  of  fifty  dollars  imposed,  for  which  and  costs  judg--..cLw  U  ?C*- 
ment  was  rendered  accordingly.  The  case  was  taken  by  appeal  to  the  ,^1^  li^ 
County  Court  of  Grundy  Count}',  where  a  trial  was  held  by  the  court,  ^  ^  1  ^  ,^ 
jury  having  been  waived,  and  appellant  again  found  guilty,  and  the  pen-  ^  I  ^1 
alty  of  fifty  dollars  imposed,  and  judgment  entered  for  that  amount  and  Kow*.  f^  .  < 
costs  ;  and  the  case  is  brought  here  by  further  appeal.  «Ua^»^»-«^ 

The  Act  of  the  Legislature  above  referred  to  provides  "that  every         ' 
manufactiiring,  mining,  quarrying,  lumbering,  mercantile,  street,  elec-  ' 
trie  and  elevated  railway,  steamboat,  telegrajjh,  telephone,  and  municipal  -O^csa/ul  c^ 
corporation  and  every  incorporated  express  compan}'  and  water  com-  Q^cT^r^juu^^^^ 
pan  3^7  sTiall  pay  weekly  each  and  every  employee  engaged  in  its  business  jj^ 
the  wages  earned  by  such  employee  to  within  six  da}s  of  the  date  of   vr"'^'^-^''-^'^ 
such  payment;  provided,  however,  that  if  at  any  time  of  payment  an3'^v?^>^  \a 
employee  shall  be  absent  from  his  regular  place  of  labor  he  shall  be  en-    ^^^^  »    i  + 
titled  to  said  payment  at  any  time  thereafter  upon  demand."     And,  ^ 

after  providing  a  penalty  of  not  less  than  ten  dollars  nor  more  than  fifty    va^-^-^  *- 
dollars  for  each  violation,  that  such  action  be  commenced  within  thirty    e^tLj^   j^ 
days  after  the  violation,  notice  to  the  corporation  that  an  action  will  be    pf^^^,^^    0^ 
brought,  defences  that  may  not  be  set  up,  etc.,  proceeds  :  "  No  assign-  , 

ment  of  future  wages  payable  weekly  under  the  provisions  of  this  Act  ftA»-vvc  pA 
shall  be  valid  if  made  to  the  corporation  from  whom  such  wages  are  to     Vu^i^  . 
become  due,  or  to  any  person  on  behalf  of  such  corporation  or  if  made  r»^A^^^3^ 
or  procured  to  be  made  to  any  person  for  the  purpose  of  relieving  such 
corporation  from  the  obligations  to  pay  weekly  under  the  provisions  of  c-^X    (uJ 

1  See  Archer  v.  James  et  al,  2  BeSt  &  Sm.  61  (1862).  — Ed.     -XAj^     (U^--^^^^^*-^^-*"^ 


-^^^  924  BRACEVILLE   COAL    CO.    V.    THE   PEOPLE.  [cllAP.  V. 

(1  this  Act.     Nor  shall  any  of  said  corporations  require  any  agreement 

^■^^-'^y  from  an  employee  to  accept  wages  at  other  periods  than  as  provided  in 

^  *'^^^ci  section  1  of  this  Act,  as  a  condition  of  employment." 
Cti*vt<  cv/r        Appellant  became  a  corporation  under  the  general  incorporation  law, 

,  in  force  July  1,  1872,  and  for  several  years  past  has  been  engaged  in 

CxmAC^  the    business  of    coal-mining,  with  its  principal  oftice    at   IJraccville, 

/OiAio^-  Grundy  County,  this  State.     A  certain  contract  is  provided  by  appel- 
lant, which  all  persons  desiring  employment  in  its  service  are  required 

U    lA,*.^,^  to  sign  as  a  condition  precedent  to  such  employment.     The  complain- 

t/tOyCu-^  iiig  witness,  Thomas  McGuire,  in  November,  1891,  applied  to  the  super- 

/     .  iutendent  of  appellant's  mines  for  work,  and  was  required  to  sign  one  of 

'     .  -j--  its  contracts,  -which  was  done,  in  duplicate,  each  party  retaining  a  copy. 

'■i^^'^    ^  Certain  rules  and  regulations  of  the  company  on  the  back  of  its  con- 

ihjiAA.'i^  ti-acts  are,  by  the  terms  of  each  contract,  made  a  part  of  the  same. 

''lc^*4\  '^^^  contract  of  witness  McGuire,  after  stipulating,  among  other  things, 
the  wages  to  be  paid,  etc.,  provides:   "All  payments,  hereunder  to  be 

'W  '^^^^^-^  made  on  regular  pay-day,  and  in  compliance  with  the  rules  and  rogula- 

^JaXJL/Ux  tious  above  named  ;  and  pay-day  is  hereby  fixed  for  and  on  the  first 

^      \j  Saturday  after  the  10th  of  each  month,  when  and  at  which  time  all 

y  ^'Z  wages  or  moneys  that  may  have  been  earned  diu'ing  and  in  the  caleu- 


^     Saturday  after  the  10th  of  each  month,  when  and  at  which  time  all 
-  ^Uwti/V^  (jjjj.  i^-ionth  next  prior  to  such  pay-day  shall  be  paid,  less  all  moneys 


(XaJX^  owing  said  party  of  the  first  part  on  any  account  whatever."  By  the 
j^  i&  {:i^^  seventh  rule,  printed  on  the  back  of  said  contract,  and  made  part 
thereof,  it  is  provided  :  "  Every  employee  will  be  paid  once  a  month  at 
'■^'^'^'^"'''^  regular  pay-day  all  wages  or  moneys  he  may  have  earned  during  and  in 
cL  v-c-c^  -  the  calendar  month  next  prior  to  such  pay-day,  after  deducting  any  indebt- 
^  ^>  caM.'  edness  which  such  employee  may  owe  to  the  company,  or  which  the  com- 


/        pany,  with  the  consent  of  such  employee,  may  have  assumed  to  pa}-  to 
■^  any  other  person."     McGuire  entered  upon  the  employment  under  the 

<tM  th^''^"^  contract  November  3,  1891,  and  quit  November  13,  1891,  and  demanded 
j^^lMiuL   his  wages.     The  company  refused  to  pay  him  before  the  next  pay-day, 
/  _    when  he  gave  the  notice  under  the  statute,  and  caused  this  suit  to  be 

^/^^»^%rought. 
^cji<iAdAM  ^         George  S.  Souse,  for  appellant. 

-j^  Mr.  S.  C.  Stouffh  and  3Ir.  William  Mooney,  for  the  People. 

Mr.  Justice  Shope  delivered  the  opinion  of  the  court :  The  principles 

'^^/^■^■^■^^        that  must  control  the  decisions  of  this  case  were  announced  in  Frorerw. 

kLq/u^.         Peajde,   141  111.   171.     Unless  we   are  prepared  to   recede   from   the 

JaliSl      doctrine  of  that  case,  and  the  subsequent  case  o^ Ramsey  v.  People,  142 

/        .      111.  380,  the  Act  under  consideration  must  be  likewise  held  nnconstitu- 

-o-f"^^^*^     tional  and  void.     Section  2  of  art.  2,  of  the  Constitution  of  this  State 

/vLktd  "fcv     guarantees  that  no  person  shall  be  deprived  of  life,  liberty,  or  property 

,//  ,  without  due  process  of  law.     We  said  in  the  Frorer  Case,  the  words 

ff-^*''^         "  due  process  of  law  "  "  are  to  be  held  synonymous  with  '  the  law  of  the 

i>f^'       land,'"  and,  quoting  from  milett  v.  People^,  \\1  111.  294,  said  :  "And 

c  /Lv4/^        thisjTieans  general  public  law-,  binding  upon  all  the  members  oflbe_com- 

Ar    J^    munity  under  all  circumstances,  and  not  partial^orprivate  laws,  aflfect- 


-f  .  i_. 


L'^K^Jj^     C3UAJA 


CHAP,  v.] 


BEACEVILLE    COAL    CO.    V.    THE   PEOPLE. 


92: 


ing  the  rights  of  pri\^te  individuals  or  classes  of  individuals."  There 
can  be  no  liberty,  protected  by  government,  that  is  not  regidated  hy  such 
laws,  as  will  preserve  the  right  of^each  citizen  to  pursue  hi^^^in  ad- 
vancement  andJAappiness  in  hjs^ own  wa)',  subject  to  the  restraints  neces- 
sarj'  to  secure  the  same  righ^to  all  others.  Tlic  fundamental  prin^fi:)]e 
upon  which  liberty  is  based  in  free  and  enlightened  government  is 
erjualitv  under  the  law  of  the  land.  ^It  has  accordingh-  been  everywhere /'i3  ^  / 
held  that  liberty,  as  that  term  is  used  in  the  Constitution,  means  not  .     vs 

onlyfreedom  of  the  citizen  from  servitude  and  restraint,  but"  is  deemed 
to  embrace  the  right  of. every  man  to  be  free  in  the  use  of  his  powers 
and_facultics,  and  to  adopt  and  pursue  such  avocation  or  calling  as  he 
may  choose,  subject  only  to  the  restraints  necessary  to  secure  the  com- 
mon welfare.  Frorer  v.  People,  supra;  Com.  v.  Perry,  155  Mass. 
117;  People  v.  Gillson,  109  N.  Y.  389;  Live-Stock,  etc  Ass'n  v. 
Crescent  City,  etc.  Co.,  1  Abb.  (U.  S.)  388  ;  Slaughter- House  Cases,  16 
Wall.  36  ;  Godcharles  v.  Wlfjeman,  113  Pa.  St.  431  ;  State  v.  Goodunll, 
33  W.  Va.  179.  \Pr012ert3',  in  its  broader  sense,  is  not  the  physical 
thing  which  ma\'  be  the  sulyect  of  ownership,  but  js__thej2ght  of  domin- 
ion,    possession,    and   power   ofdisposition   which   may  be    acquired 


over  it.  And  the  right  of  property  preserved  hy  the  Constitution's  the 
ri^it_^not  only  to  possess  and  enjoy  it,  but  ajso.to  accj|uire  it  in  any  law- 
fjjl  jijodp,  or  b}'  following  any  lawful  industrial  pursuit  which  the  citi- 
zen, in  the  exercise  of  the  liberty  guaranteed,  may  choose  to  adopt. 
Labor  is  the  primary  foundation  of  all  wealth.  The  property  which 
each  one  has  in  his  own  labor  is  the  common  herita.ge.  And,  as  an  in- 
cident to  the  right  to  acquire  other  property,  the  jlhertv  to  enter  into 
contracts  by  which  labor  may  be  cmp^loyed  in  such  wa}'  asthe  laborer 
shall  deem  most  Jj^neficiaK  and  ot^tljei-s  to  employ  sucli  labor,  is  ne- 
cessarily  incjiuded  in  the  constitutional  guarantee.  In  the  Frorer  Case, 
we  said  :  "  The  privilege  of  contracting  is  both  a  libert}-  and  a  property' 
right,  and  if  A.  is  denied  the  right  to  contract,  and  acquire  property  in 
the  manner  which  he  has  hitherto  enjoyed  under  the  law,  and  which  B., 
C,  and  D.  are  still  allowed  bv  the  law  to  enjoy,  it  is  clear  that  he  is 
deprived  of  both  libert}'  and  property,  to  the  extent  that  he  is  thus  de- 
nied the  right  to  contract ;  "  and  quoted  with  approval :  "  The  man  or 
the  class  forbidden  the  acquisition  or  enjoyment  of  the  property  in  the 
manner  permitted  the  community  at  large  would  be  deprived  of  liberty 
in  particulars  of  primary  importance  to  his  or  their  pursuit  of  happi- 
ness."    Cooley,  Const.  Lim.  393. 

It  is  undoubtedly  true  that  the  people  in  their  representative  capacity 
may,  bv  general  law,  render  that  unlawful,  in  many  cases,  which  had 
hitherto  been  lawful.  But  laws  depriving  particular  persons  or  classes 
of  persons  of  rights  enjoyed  by  the  community  at  large,  to  be  valid, 
must  be  based  upon  some  existing  distinction  or  reason,  not  applicable 
to  others,  not  included  within  its  provisions.  Id.  391.  And  it  is  only 
when  such  distinctions  exist  that  differentiate  in  important  particulars, 
persons,  or  classes  of  persons  from  the  bod}-  of  the  people,  that  laws 


/Ice 


926  EIIACEVILLE   COAL   CO.    V.    THE   TEOI'LE.  [CIIAP.  V. 

liaving  operation  only  upon  such  particular  persons  or  classes  ol"  per- 
sons have  been  held  to  be  valid  enactments.  In  the  M'dlctt  Case  we 
held  that  it  was  not  competent,  under  the  Constitution,  for  the  legisla- 
ture to  shigle  out  operators  of  coal  mines  and  impose  restrictions  in 
making  contracts  for  the  emplo3'ment  of  labor  which  were  not  required 
to  be  borne  by  other  employers.  And  in  the  Frorer  Case,  a  law  sin- 
gling out  persons,  corporations,  or  associations  engaged  in  mining  and 
manufacturing,  and  depriving  them  of  the  right  to  contract  as  persons, 
corporations,  and  associations  engaged  in  other  business  or  vocation 
might  lawfully  do,  was  in  violation  of  the  Constitution,  and  void.  So 
in  Eamsey  v.  People,  142  111.  380,  "  An  Act  to  provide  for  the  AYeigh- 
ing  in  Gross  of  Coal  hoisted  from  Mines,"  approved  June  10,  1891,  was 
held  unconstitutional  and  void  for  the  same  reason. 

The  Act  under  consideration  applies  not  to  all  corporations  existing 
within  the  State,  or  to  all  that  have  been  or  ma}'  be  organized  for  pecu- 
niary profit  under  the  general  incorporation  laws  of  the  State.  There  is 
no  attempt  to  make  a  distinction  between  corporations  and  individuals 
who  ma}'  employ  labor.  The  slightest  consideration  of  the  Act  will 
demonstrate  that  many  cor|)orations  that  may  be  and  are  organized  a n d 
doing  business  under  the  laws  are  not  included  within  the  designated 
corporations.  No  reason  can  be  found  that  would  require  weekly  pay- 
ments to  the  employees  of  an  electric  railway  that  would  not  require  like 
payment  by  an  electric  light  or  gas  company  ;  to  a  corporation  engaged 
in  quarrying  or  lumbering  that  would  not  be  equally  applicable  to  a  cor- 
poration engaged  in  erecting,  repairing,  or  removing  buildings  or  other 
structures  ;  to  mining  that  would  not  exist  in  respect  of  corporations 
engaged  in  making  excavations  and  embankments  for  roads,  canals,  or 
other  public  or  private  improvements  of  like  character  :  that  will  api)ly 
to  a  street  or  elevated  railway  that  will  not  make  it  equally  important 
in  other  modes  of  transportation  of  freight  and  passengers.  The  public 
records  of  the  State  will  show,  and  it  is  a  matter  of  common  knowledge, 
that  very  many  corporations  have  been  organized  and  are  doing  busi- 
ness in  the  State  which  necessarily  employ  large  numbers  of  men  that 
are  not  included  within  the  Act  under  consideration. 

The  restriction  of  the  right  to  contract  affects  not  only  the  corpora- 
tion, and  resti'iets  its  right  to  contract,  but  that  of  the  employee  as  w:ell. 
We  need  not  repeat  the  argument  of  the  Frorer  Case  upon  this  point. 
An  illustration  of  the  manner  in  which  it  affects  the  employee,  out  of 
many  that  might  be  given,  may  be  found  in  the  conditions  arising  from 
the  late  unsettled  financial  affairs  of  the  country.  It  is  a  matter  of 
common  knowledge  that  a  large  number  of  manufactories  were  shut 
down  because  of  the  stringency  in  the  money  market.  Employers  of  In l7nv 
were  unable  to  continue  production  for  the  reason  that  no  sale  roidd_he 
found  for  the  product.  It  was  suggested  in  the  interest  of  employers,  as 
well  as  in  the  public  interest,  that  em])loyees  consent  to  accept  only  so 
much  of  their  wages  as  was  actually  necessary  to  their  sustenance,  re- 
serving payment  of  the  balance  until  business  should  revive,  and  thus 


CHAP,  v.]  BRACEVILLE   COAL   CO.    V.    THE   PEOPLE.  927 

enable  the  factories  or  workshops  to  be  open  and  operated  with  less 
present  exi)enditiires  of  money.  Public  economists  and  leaders  in  the 
interest  of  labor  suooested  and  advised  this  course.  In  this  State,  and 
under  this  law,  no  such  contract  could  be  made.  The  employee  who 
souoht  to  w^ork  for  one  of  the  corporations  enumerated  in  the  Act  would 
find  himself  incapable  of  contracting;  as  all  other  laborers  in  the  State 
might  do.  The  corporations  would  be  prohibited  entering  into  such  a 
contract,  and,  if  they  did  so,  the  contract  would  be  voidable  at  the  will 
of  the  employee,  and  the  employer  subject  to  a  |)enaltv  for  making  it. 
The  emplojee  would,  therefore,  be  restricted  from  making  such  a  con- 
tract as  would  insure  to  him  support  during  the  unsettled  condition  of 
affairs,  and  the  residue  of  his  wages  when  the  product  of  his  labor  could 
be  sold.  They  would,  by  the  Act,  be  practically  under  guardianship ; 
their  contracts  voidable,  as  if  they  were  minors  ;  their  right  to  freely 
contract  for  and  to  receive  the  benefit  of  their  labor,  as  others  might 
do,  denied  them. 

But,  treating  the  restrictions  as  affecting  the  corporations  onlj',  it  is 
Insisted  that  the  reservation  of  authority  by  the  General  Assembly  in 
section  9  of  the  General  Incorporation  Act  (chapter  32,  Rev.  St.)  au- 
thorized the  passage  of  the  Act  in  question.  That  section  provides : 
"The  General  Assembl}'  shall  at  all  times  have  power  to  prescribe  such 
regulations  and  provisions  as  it  ma}'  deem  advisable,  which  regulations 
and  provisions  shall  be  binding  on  an}'  and  all  corporations  formed 
under  this  Act."  It  is  said  this  section  entered  into  and  formed  a  part 
of  the  contract  under  which  the  grant  of  the  corporate  franchise  was 
conferred  upon  appellant  company,  it  having  been  organized  under 
the  general  law.  It  was  expressly  held  that  the  reservation  of  the  right 
to  alter,  amend,  or  repeal  the  charter  entered  into  and  formed  a  part  of 
the  contract  between  the  State  and  the  corporation  chartered  under  the 
Constitution  of  1848,  and  that  the  power  reserved  might  be  constitu- 
tionally exercised.  Sutler  v.  Walker,  80  111.  345.  And  undoubtedly 
the  same  construction  should  be  placed  upon  the  reservation  of  power 
in  the  section  quoted.  But  by  section  1,  art.  11,  of  the  Constitution  it 
is  provided  :  "  No  corporation  shall  be  created  by  special  laws,  or  its 
charter  extended,  changed  or  amended,  .  .  .  but  the  General  Assem- 
bly shall  provide  by  general  laws  for  the  organization  of  all  Corpora- 
tions hereafter  to  be  created."  The  manifest  intention  of  this  provision 
of  the  Constitution  was  to  "require  not  only  the  creation  of  corporations, 
but  amendments  to  charters  of  those  existing,  to  be  made  by  general 
laws,  applicable  alike  to  all  occupying  like  circumstances  and  existing 
under  the  same  conditions  ;  and  it  necessarily  follows  that  special  Acts, 
applying  to  particular  corporations  only,  and  not  to  the  general  body  of 
corporations  created  under  the  Act,  would  fall  within  the  prohibition  of 
this  section. 

By  the  general  incorporation  law  appellant  company  was  granted  the 
right  to  contract  as  a  corporation  in  and  about  the  business  for  which  it 
was  organized.     A  restriction  of  its  right  to  thus  contract  is  necessarily 


928  BRACEVILLE   COAL   CO.   V.   THE   PEOrLE.  [ciTAr.  V. 

an  aiiiendment  ov  change  of  its  corporate  powers  and  functions  of  its 
charter.  If,  Iherefore,  the  restriction  is  hehl  to  fall  within  the  power 
reserved  in  section  i>  of  the  Act,  it  must,  in  view  of  the  constitutional 
provision,  be  construed  as  reserving  the  power  to  prescribe  such  regu- 
lations and  provisions  as  the  legislature  mav  deem  advisable  by  general 
law.  The  Act  under  consideration,  not  being  a  general  law,  is  there- 
fore not  a  warranted  exercise  of  power. 

We  need  not  extend  this  opinion  by  further  discussion.  The  ri<rht  to 
contract  necessarily  includes  the  right  to  fix  the  pyice  at  which  labor 
will  be  performed,  and  the  mode  and  time  of  payment.  Each  arc  essen- 
tial elements  of  the  right  to  contract,  and  whosoever  is  restricted  in 
either  as  the  same  is  cni'oycd  l>v  the  community  at  large  is  deprived  of 
liberty  and  pro|)ertv.  The  enactment  being  unconstitutional,  there  is 
no  law  authorizing  the  judgment  of  the  County  Court,  and  it  will  accord- 
ingly be  reversed.^ 

1  And  so  Lepp  v.  St.  Louis,  ^-c.  R>/.  Co.,  2.5  S.  W.  Rep.  75  (Ark.  Feb.  1894).  but 
allowiug  such  legislation  as  against  corporations. 

In  Ramsetj  v.  The  People,  142  111.  380,  Bailey,  C.  J.,  for  the  court,  said  •  "  In 
the  recent  case  of  Frorer  v.  People  (111.  Sup.),  31  N.  E.  Rep.  395,  we  had  occasion  to 
consider  another  statute  passed  by  the  same  legislature,  and  involving,  in  the  main, 
the  same  constitutional  principles  as  the  one  now  before  us,  and  reached  the  conclusion 
that  the  statute  in  question  in  that  case  is  unconstitutional  and  void.  That  statute 
made  it  unlawful  for  any  person,  company,  corporation,  or  association  engaged  in  any 
mining  or  manufacturing  business  to  engage  in.  or  be  interested,  either  directly  or  in- 
directly, in  the  keeping  of  a  truck  store,  or  the  controlling  of  any  store,  sho|),  or 
scheme  for  the  furnishing  of  siqiplies,  tools,  clothing,  provisions,  or  groceries  to  his^ 
its,  or  their  employees,  wliile  engaged  in  mining  or  manufacturing.  We  held  that  said 
■statute  was  a  proiiibition,  not  only  upon  tiie  employer  engaged  in  mining  or  manufac- 
turing. ])nt  also  upon  his  cniiiloyees,  and  took  from  both  the  right  and  lilierty  belonging 
to  all  other  members  of  tlic  community  to  enter  into  such  contracts,  not  contrary  to 
public  policy,  as  they  may  sec  fit ;  tb.it  tlie  legislature  hnd.no  power  to  dejrrive^OTe 
class  of  persons  of  iirivileges  allowed  to  other  persons  under  like  conditions;  that  the 
pnvilogi'  "f  cTintracting  is  bdtlTa"  liberty  and  a  pr(ii)ortv  right,  prutecteil  by  tiiat  pro- 
vision of  the  Constitution  which  guarantees  that  no  iicrsun  shall  be  deprived  of  his 
liberty  or  property  without  duo  process  of  law;  and  that  if  one  person  is  denied  the 
ri"-bt  to  contract  and  acquire  property  in  the  manner  which  lie  has  hitherto  enjoyed 
under  the  law,  and  which  is  still  allowed  to  other  members  of  the  community,  he  is 
deprived  of  both  liberty  and  propei-ty,  to  the  extent  that  he  is  thus  deprived  of  the 
right  of  contract.  We  are  of  the  opinion  that  the  same  rule,  in  siil)stance,  laid  down 
in  t\\&  Frorer  Case  applies  here,  and  we  need  therefore  do  little  more  than  refer  to  what 
is  said  in  the  opinion  in  that  case.  The  statute  now  before  us,  in  like  manner  with  the 
one  under  consideration  there,  attempts  to  take  from  "l^otii  em])loyer  and  employee,  en- 
gaged in  the  mining  business,  the  right  and  power  of  fixing  by  contract  tlie  manner  in 
which  such  wages  are  to  be  ascertained.  The  statute  makes  it  imperative,  where  the 
miner  is  paid  on  the  basis  of  the  amount  of  coal  mined,  w h atcver  may  be  the  wish es 
or  interests  of  the  parties,  that  the  coal  shall  be  weighcil  on  the  pit  cars  Ijefore  bein^ 
screened,  and  that  the  compensation  shall  be  computed  upon  the  weight  of  tj^ie  un- 
screened  coal.  In  all  other  kinds  of  business  involving  the  employment  of  labor,  the 
employer  and  employee  are  left  free  to  fix  by  contract  the  amount  of  wages  to  be  paid, 
and  the  mode  in  which  such  wages  shall  l)e  ascertained  and  computed.  This  is  justly 
regarded  as  a  very  important  right,  vitally  affocting  tlie  interests  of  ])oth  parties.  To 
the  extent  to  which  it  is  al)ridgeil.  apronertv  right  is  taken  awav.  There  is  nothing  in 
the  business  of  coal-mining  which  renders  either  the  employer  or  employee  less  capable 


CHAP,  v.] 


STATE   V.    LOOMIS. 


929 


STATE  V.   LOOMIS.  QVU> .    ri^--«-^  Jr^^ 

Supreme  Court  of  Missouri.     1893.        iU-^V^  V^    ^^^ 

[115  .1/0.  307.]  1  c^c^^..4^^--^--t^  ^ 

Dysart  &  Mitchell  and  iee,  McKeighan^  Ellis,  and  Priest,  for  ap-  'vvc*.'^^^*-^^ 

pellants.  -     ,,^vca^ic  -c 


Black,  C.  J.  This  is  an  information  in  two  counts,  filed  b}'  the  prose- 
cuting attorne}'  of  Macon  County  against  the  three  defendants,  engageil 
in  cariying  on  tlie  business  of  mining  coal  in  that  count}-.  The  first  count 
avers  that  the  defendants  did  unlawfulh'  issue  and  circulate  in  payment 
of  wages  a  certain  order,  check,  etc.,  payable  to  P.  Daniels  otherwise 
than  in  mone}',  without  being  payable,  at  the  option  of  the  holder,  in 
merchandise  or  monc}'.  The  second  count  states,  in  substance,  that 
defendants  unlavvfullj'  failed  to  redeem  a  certain  order,  check,  etc., 
issued  to  P.  Daniels  in  payment  for  wages,  the  same  having  been  pre- 
sented for  payment  thirt}'  days  from  the  date  of  the  deliveiy  thereof. 
The  information  is  based  upon  sections  7058,  7060,  of  the  Revised 
Statutes  of  1889,     [These  sections  are  given  in  the  note.^] 


of  contracting  in  respect  to  wages  than  in  any  of  the  other  numerous  branches  of  busi- 
ness in  which  laborers  are  employed  under  analogous  conditions.  There  is  no  differ- 
ence, at  least  in  kind,  so  far  as  this  matter  is  concerned,  between  coal-miuiug,  on  tlie  one 
hand,  and  other  varieties  of  mining,  quarrying  stone,  grading  and  constructing  rail-  ^^^,^^_JljiyVi. 
roads,  and  their  operation  when  constructed,  manufacturing  in  all  its  departments,  the 
construction  of  buildings,  agriculture,  commerce,  domestic  service,  and  an  almost  infi- 
nite variety  of  other  avocations  requiring  the  employment  of  laborers,  on  the  otlier 
hand.  Upon  Avhat  principle,  tlien,  can  those  engaged  in  coal-mining  be  singled  out, 
and  subjected  to  restrictions  of  their  power  to  contract  as  to  wages,  while  those  engaged 
in  all  these  other  classes  of  business  are  left  entirely  free  to  contract  as  they  see  tit  ? 
We  think  the  attempt  of  the  legislature  to  impose  such  restrictions  is  clearly  repug- 
nant to  the  constitutional  limitation  above  referred  to,  and  therefore  void."  —  P^n. 

1  In  Banc,  reversing  a  decision  of  the  same  court.  Division  No.  1,  in  the  same  case, 
in  October,  1892,  22  S.  W.  Rep.  332.  See  the  elaborate  opinion  of  Thomas,  J.,  as 
there  reported.  —  Ed. 

2  The  first  of  these  .sections  provides  :  "  It  sliall  not  be  lawful  for  any  corporation, 
person,  or  firm  engaged  in  manufacturing  or  mining  in  this  State  to  issue,  pay  out, 
or  circulate  for  payment  of  the  wages  of  labor,  any  order,  check,  memorandum,  token, 
or  evidence  of  indebtedness,  payable,  in  whole  or  in  part,  otherwise  than  in  lawful 
money  of  the  United  States,  unless  the  same  is  negotiable  and  redeemable  at  its  face 
value,  without  discount,  in  cash  or  in  goods,  wares,  or  merchandise  or  su])plies,  at  tlie 
option  of  the  holder,  at  the  store  or  other  place  of  business  of  such  firm,  person,  or  cor- 
poration ;  .  .  .  and  the  person  who,  or  corporation,  firm,  or  company  which,  may  issue 
any  such  order,  check,  memorandum,  token,  or  other  evidence  of  indebtedness,  sliall, 
upon  presentation  and  demand  within  thirty  days  from  date  or  delivery  thereof,  redeem 
the  same  in  goods,  wares,  merchandise,  or  supplies  at  the  current  cash  market  price  for 
like  goods,  wares,  merchandise,  or  supplies,  or  in  lawful  money  of  the  United  States, 
as  may  be  demanded  by  the  holder  of  any  such  order,  memorandum,  token,  or  other 
evidence  of  imlebtedness :  provided,"  etc.  Section  7060  makes  it  a  misdemeanor  for 
any  person,  firm,  or  company  engaged  in  mining  or  manufacturing  to  issue  or  circu- 
late, in  payment  of  wages,  any  order,  check,  etc.,  payable  otherwise  than  as  provided 
in  section  7058 ;  or  to  fail  to  redeem  any  sucli  order,  clieck,  etc.,  iu  money  when 
presented  for  payment. 


H 


4* 


.ioA     -\aaA030  STATE   V.   LOOMIS.  [CIIAP.  V. 

\^j.  The  Circuit  Court,  sitting  as  a  jury,  found  the  defendants  guiUv  as 

((?C  Cm.  charged  in  the  first  count  oT  the  information,  and  assessed  their  pun'sh- 
t-'sx^.-va         mont  at  a  fine  of  $10,  and  the}'  appealed. 

c<-</vv^^'         Tlie  evidence  discloses  the  following  facts  :  The  defendants,  compos- 

/  %      i"S  the  firm  of  Looniis  &  Snively,  were  the  owners  of  coal  mines,  and 

<MH.^    Y    in  connection  with  that  business  carried  on   a  store.      Peter  Daniels 

lX  .  worked  for  them  as  a  miner.     At  the  end  of  January,  1891,  he  owed 

-  (x^A^^-^  them  S43.20.    On  the  18th  of  the  following  P'ebruary  he  had  earned,  as 

^J.C  wages  during  that  month,  85.50,  and  on  that  day  he  requested,  and 

the  defendants' clerk  gave  him  a  "  credit  coupon  check-book"  upon 

■un^l  ^^  ~    their  store.     The  coupons  were  in  sums  of  five,  ten,  and  twenty-five 

(7£A  1^  ^  cents,  and  aggregated  five  dollars.     It  is  stated  on  the  back  of  the 

La^^  £^f.,    book   that  "  the   coupons   in   this   book   are   not   good,  if  detached, 

_    __  and  are  payaVtle  only  in  merchandise  when  presented  by  P.  Daniels." 

^■^^-^^^^1  Each  coupon  says  :  "  Good  for  merchandise  at  our  store.     Not  trans- 

OA^iM^o^'  ferable.  Loomis  &  Snively."  Daniels  assigned  this  check-book  to 
Xu^  a^x  Burgo,  who  assigned  it  to  Hughes,  and  he  transferred  it  to  Mr.  Williams. 
i  ^  L.  The  latter  presented  it  to  the  defendants  for  payment  on  the  2d  of 
*^^^^  ^  April,  1891,  and  they  then  refused  payment.  The  proof  shows  that 
<xc  ti^  defendants  had  monthly  pay-days.  On  these  days  they  gave  out  no 
vUb  "fo  orders  or  checks,  but  paid  the  miners  what  was  due  them  in  cash.      At 

^j>,_  the  close  of  the  evidence,  the  defendants  asked  the  court  to  discharge 
^*^^  them,  because  the  statute  upon  which  the  information  was  founded  was 

^  ejM.-  unconstitutional,  and  therefore  void,  which  request  the  court  refused. 
^  4  0.         The  contention  is  that  the  two  sections  of  the  statute  before  mentioned 

-      ''  i)    -.    are  in  conflict  with  several  clauses  of  the  Constitution  of  this  State,  and 
.    ,-.      especially  the  following  :  — 

Oi^A^f^         "  1.  That  all  persons  have  a  natural  right  to  hfe,  liberty,  and  the 
^  cUii^AjJ-    enjoyment  of  the  gains  of  their  own  industry  ; " 
■x,^.^MtJi^^-       "2.  That  no  person  shall  be  deprived  of  life,  liberty,  or  property, 

(J  .i.     without  due  process  of  law  ;  " 
i/2/i.  o\f^~       i;  3_  ^n(j  that  they  violate  that  part  of  the  Fourteenth  Amendment 
vi/i.  of  the  Constitution  of  the  United  States  which  declares:  'Nor  shall 

.  Jj^^nJi  any  State  deprive  any  person  of  life,  liberty,  or  property  without  due 
^  ^^^^      process  of  law,  nor  deny  to  any  person  the  equal  protection  of  the 

j^^^rJOioM.        The  words  "  due  process  of  law,"  as  used  in  these  clauses  of  both 

/       ^     constitutions,  mean  the  same  as  "  the  law  of  the  land."     Story,  Const. 

J^      "^        (5th  ed.)  §  1943;  Cooley,  Const.  Lim.  (6th  ed.)  430.     It  was  said  in 

^*^^'^         Railway  Co.  v.  Jlamesl  \\b  U.  S.  512  :   "  In  England  the  requirement 

^^ixIm  OA^-of  due  process  of  law,  in  cases  where  life,  liberty,  and  property  are 

affected,  was  originally  designed  to  secure  the  subject  against  the  arbi- 

1^   Cl^i/^-L-  |.^.j^j.^.  actions  of  the  Crown,  and  to  place  him  under  the  protection  of  the 

JjJ^^JM.        Ifiw.    The  words  were  held  to  be  the  equivalent  of  '  law  of  the  land  ; '  and 

a  similar  purpose  must  be  ascribed  to  them  when  applied  to  a  legislative 

body  in  this  country."    It  is  now  axiomatic  that  "  everything  which  may 

pass  under  the  form  of  an  enactment  is  not,  therefore,  to  be  considered 


CHAP.  v.] 


/^ti^^'l^'^  'Z^U-^^J-^'i      tCcU      tt^x.    .tX-C^ 


A/^^-'ce/x-^V'^ 


OAArvt/UU'^ 


J*  o^c^  X£\dir 


f^XA^*^ 


STATE   V.    LOOMIS, 


aJJi 

931 


the  law  of  the  land."  Speaking  of  these  words,  Mr.  Justice  Johnson 
said  :  "  They  were  intencled  to  secure  the  individual  from  the  arbitrary 
exercise  of  the  pow^ers  of  the  government,  unrestrained  b}'  the  estab- 
lished principles  of  private  I'ights  and  distributive  justice."  Bank  v. 
Okelj/,  4  "Wheat.  235.  "Law  of  the  land"'  is  said  to  moan  a  law 
binding  upon  every  member  of  the  communit}'  under  similar  circum- 
stances. Walb/s  Heirs  v.  Kennedy,  2  Yerg.  554.  The  word  "  liberty/' 
as  used  in  these  constitutional  declarations,  means  more  than  freedom 
of  locomotion.  It  includes  and  comprehends,  among  other  things,  free- 
dom  of  speech,  the  right  to  self-defence  against  unlawful  violence,  and 
the  right  to  freely  buy  and  sell  as  others  may.  2  Stor}',  Const.  (5th  ed.) 
§  1590. 

From  the  foregoing  descriptions  and  definitions  of  "  due  process  of 
law%"  or  its  equivalent,  "  law  of  the  land,"  it  must  be  evident  tliat  this 
constitutional  safeguard  condemns  arbitrary,  unequal,  and  partial  legisla- 
tion ;  and  it  is  equally  clear  that  the  right  to  make  contracts,  and  have 
them  enforced,  as  others  may,  is  one  of  the  rights  so  secured  to  eve ry 
citizen.  There  is  no  doubt  but  manj'  of  our  legislative  enactments 
oj^erate  upon  classes  of  individuals  only,  and  they  are  not  invalid  be- 
cause the}'  so  operate,  so  long  as  the  classification  is  reasonable  and 
not  arbitrary.  Thus,  it  is  perfectlj'  competent  to  legislate  concerning 
married  women,  minors,  insane  persons,  bankers,  common  carriers,  and 
the  like  ;  and  the  power  of  the  legislature  to  prescribe  police  regulations 
applicable  to  localities  and  classes  is  very  great  because  such  laws  are 
designed  to  protect  propert}^,  and  the  safety,  health,  and  morals  of  the 
citizen.  But  classification  for  legislative  purposes  must  have  some  rea- 
sonable basis  upon  which  to  stand.  It  must  be  evident  that  differences 
■which  would  serve  for  a  classification  for  some  purposes  furnish  no 
reason  whatever  for  a  classification  for  legislative  purposes.  The  dif- 
f e rences  which  will  support  class  legislation  must  be  such  as,  in  the 
nature  of  things,  furnish  a  reasonable  basis  for  separate  laws  and 
regulations.  Thus  the  legislature  may  fix  the  age  at  which  persons 
shall  be  deemed  competent  to  contract  for  themselves,  but  no  one  will 
claim  that  competency  to  contract  can  be  made  to  depend  upon  stature, 
or  color  of  the  hair.  Such  a  classification,  for  such  a  purpose,  would  be 
arbitrary,  and  a  piece  of  legislative  despotism,  and  therefore  not  the 
law  of  the  land.  When  speaking  upon  this  subject,  Judge  Cooley  says  : 
"  The  doubt  might  also  arise  whether  a  regulation  made  for  any  one 
class  of  citizens,  entirely  arbitrary  in  its  character,  and  restricting  thei r 
rights,  |)rivileges,  or  legal  capacity  in  a  manner  before  unknown  to  the 
law,  could  be  sustaincfl,  notwithstanding  its  generality.  Distinctions  in 
these  respects  must  rest  upon  some  reason  upon  which  they  can  be  de- 
fended, like  the  want  of  capacitj"  in  infants  and  insane  i)crsons ;  and  if 
the  legislature  should  undtu'take  to  provide  that  persons  following  some  M^ 
specified  lawful  trade  or  employment  should  not  have  capacity  to  make  'V.olv-Oj-  ^ 
contracts,  or  to  build  such  houses  as  otliers  were  allowed  to  erect,  or  in  ^.  . 

any  other  way  to  make  such  use  oftlioir  property  as  was  permissible  to    ^^  ft^M^^ 


-y 


T>-*vs. 


OuC^   ■  oiA   A^     .  V\^  '^  ^  /,fiAjt/a>i^-^.'^-^'^ 


932  STATE   V.   LOOMIS.  [CIIAP.  V. 

otliers,  it  can  scarcely  be  doubted  that  the  Act  would  transcend  the  due 
bounds  of  legislative  power,  even  thou.<j;b  no  express  constitutional  ^ro- 
vision  could  be  pointed  out  with  which  it  would  come  in  conflict.  To 
forbid  an  individual  or  a  class  the  ri<^ht  to  the  acquisition  and  enjoy- 
ment o f  property  in  such  manner  as  should  be  ])ernuttcd  to  the  coi n - 
inanity  at  laroe  would  be  to  de|)rive  them  of  liberty  in  particulars  of 
primary  importance  to  tlteir  pursuit  of  iiappiness  ;  and  those  who  sjiall 
claim  a  right  to  do  so  ought  to  be  able  to  show  s|)ecific  authority  there- 
for, instead  of  calling'  upon  others  to  show  how  and  where  the  authori t}' 
is  negatived."     Coole}-,  Const.  Lim.  (Gth  ed.)  484. 

There  can  be  no  doubt  but  tlie  legislature  ma}'  regulate  the  business 
of  mining  and  manufacturing  so  as  to  secure  the  health  and  safet}'  of 
the  employees  ;  but  that  is  not  the  scope  of  the  two  sections  of  the  stat- 
ute now  in  question.  They  single  out  those  persons  w^ho  are  engaged 
iti_CHrrying  on  the  pursuits  of  mining  and  manufacturing,  and  say  to 
such  persons  :  "  You  cannot  contract  for  labor  payable  alone  in  goods, 
wares,  and  merchandise.  The  farmer,  the  merchant,  the  builder, 
and  the  numerous  contractors  employing  thousands  of  men  ma^-  make 
s uch  contracts,  but  you  cannot."  They  say  to  the  mining  and  man u- 
facturing  employees  :  "  Though  of  full  age,  and  competent  to  contract, 
still  you  shall  not  have  the  power  to  sell  your  labor  for  meat  and  cloth- 
ing  alone,  as  others  may."  It  will  not  do  to  saj-  these  sections  simply 
regulate  payment  of  wages,  for  that  is  not  their  purpose.  They  under- 
take to  deny  to  the  persons  engaged  in  the  two  designated  pursuits  the 
right  to  make  and  enforce  the  most  ordinary,  every-day  contracts,  —  a 
right  accorded  to  all  other  persons.  This  denial  of  the  right  to  contract 
is  based  upon  a  classification  which  is  purely  arbitrary,  because  the 
ground  of  the  classification  has  no  relation  whatever  to  the  natural 
capacity  of  persons  to  contract. 

Now,  it  may  be  that  instances  of  oppression  have  occurred,  and  will 
occur,  on  the  part  of  some  mine  owners  and  manufacturers,  but  do  they 
not  occur  quite  as  frequently  in  other  fields  of  labor?  Conceding  that 
such  instances  may  and  do  occur,  still  that  furnishes  no  reasonable  basis 
for  depriving  all  persons  engaged  in  the  two  lawful  and  necessary  pur- 
suits of  the  right  to  make  and  enforce  every-day  contracts.  •  Liberty,  q.s 
we  have  seen,  includes  the  right  to  contract  as  othejrs  may,  and  to_take 
that  right  away  from  a  class  of  i)crsons  following  lawful  pursuits  is  sim - 
ply  dopi-ivingsuch  persons  of  a  time-honored  right  which  the  Constitution 
undertakes  to  secure  to  every  citizen.  Xpplying  the  principle  of  con- 
stitutional  law  before  stated,  we  can  come  to  no  other  conclusion  than 
this  :  That  these  sections  of  the  statute  are  utterly  void.  They  attempt 
to  strike  down  one  of  the  fundamental  priuci|)les  of  constitutional  gov- 
ernment. If  they  can  stand,  it  is  difficult  to  see  an  end  to  such  legisla- 
tion, and  the  government  becomes  one  of  special  privileges,  instead  of 
a  compact  '^  to  promote  the  general  welfare  of  the  people."  We  placiP 
our  conclusion  on  the  broad  ground  that  these  sections  of  the  statu te 
are  not  ''  due  process  of  law,"  within  the  meaning  of  the  Constitution. 


CHAP,  v.]  STATE  V.   LOOMIS.  933 

Statutes  like  or  analogous  to  the  one  in  hand  have  been  enacted  in  sev- 
eral of  the  States  of  this  Union,  and  they  have  been  the  subject  of  consid- 
eration of  several  courts  of  last  resort;  and  it  is  well  to  examine  tliose 
cases  with  some  detail,  for  it  must  be  obvious  that  general  constitutional 
declarations  are  the  better  understood  when  seen  in  the  light  of  the 
facts  of  the  particular  cases  in  which  they  have  been  applied.  The 
Supreme  Judicial  Court  of  Massachusetts  had  under  consideration,  in 
Co7n.  V.  Perry  [155  Mass.  117],  28  N.  Y..  Rep.  112G,  a  statute  which 
provides  that  *■'  no  employer  shall  impose  a  fine  upon,  or  withhold,  the 
wages,  or  any  part  of  the  wages,  of  an  employee  engaged  at  weaving, 
for  imperfections  that  may  arise  during  the  process  of  weaving."  It 
was  held  that,  if  the  Act  went  no  further  than  to  forbid  the  im[)osition 
of  a  fine  for  imperfect  work,  it  might  be  sustained,  but  that  the  attempt 
to  make  inferior  work  answer  a  contract  for  good  work  presented  a  dif- 
ferent question  ;  that  the  right  to  acquire,  possess,  and  protect  propert}' 
includes  the  right  to  make  reasonable  contracts,  which  shall  be  under 
the  protection  of  the  law.  Says  the  court :  "  If  it  [the  statute]  be  held 
to  forbid  the  making  of  such  contracts,  and  to  permit  the  hiring  of 
weavers  only  upon  terms  that  prompt  payment  shall  be  made  of  the 
pi'ice  for  good  work,  however  badly  their  work  may  be  done,  and  that 
the  remed}-  of  the  employer  for  their  derelictions  shall  be  only  by  suits 
against  them  for  damages,  it  is  an  interference  with  the  right  to  make 
reasonable  and  proper  contracts  in  conducting  a  legitimate  business, 
which  the  Constitution  guarantees  to  every  one  when  it  declares  that  he 
has  a  '  natural,  inalienable  right '  of  '  acquiring,  possessing,  and  pro- 
tecting propert}'.' "  Godcharles  v.  Wiyiman,  113  Pa.  St.  431,  was  an 
action  brought  by  Wigeman  to  recover  wages  as  a  puddler.  Plea  of 
payment,  etc.  During  the  time  of  his  employment  the  plaintiff  asked 
for,  and  received,  orders  from  defendants  on  different  parties  for 
coal  and  other  articles,  which  orders  were  honored  by  the  parties  on 
whom  drawn,  and  the  defendants  paid  them.  It  seems  an  Act  of  the 
Legislature  made  all  orders  given  b}'  eraploj'ers  engaged  in  the  business 
of  manufacturing,  to  their  workmen,  payable  in  goods,  or  anything  but 
mone}',  void.  Speaking  of  these  sections  of  the  Act  the  court  said  : 
"  The}'  are  utterly  unconstitutional  and  void,  inasmuch  as  by  them  an 
attempt  has  been  made  by  the  legislature  to  do  what,  in  this  country, 
cannot  be  done  ;  that  is,  prevent  persons  who  are  sui  Juris  from  making 
their  own  contracts.  The  Act  is  an  infringement,  alike,  of  the  right  of 
the  emploj'er  and  era[)loyee.  He  may  sell  his  labor  for  what  he  thinks 
best,  whether  money  or  goods,  just  as  his  employer  may  sell  his  iron  or 
coal ;  and  any  and  every  law  that  proposes  to  prevent  him  from  so 
doing  is  an  infringement  of  his  constitutional  privileges,  and  conse- 
quently vicious  and  void."  In  State  v.  Goodwill,  33  AVVVxi.  179,  a 
statute  of  that  State  prohibited  persons  engaged  in  mining  and  manu- 
facturing from  issuing  orders  in  payment  of  labor,  except  suck  as 
should  be  made  payable  in  money.  It  made  a  violation  of  its  pro- 
visions a  misdemeanor.     The  Constitution  of  that  State  declares  that 


934  STATE   V.   LOOMIS.  [ciIAP.  V. 

all  men  have  certain  inherent  rights;  that  is  to  say,  "the  enjoyment 
of  life  and  liberty,  witli  the  means  of  acqniring  and  possessing  property, 
and  of  pursuing  and  obtaining  happiness  and  safety."  The  statute  was 
held  unconstitutional,  after  a  full  consideration.  Says  the  court:  "  Tlie 
right  to  use,  buy,  and  sell  property,  and  contract  in  respect  thereto, 
including  contracts  for  labor,  which  is,  as  we  have  seen,  pro[)erty,  is 
protected  by  the  Constitution."  The  scope  of  the  opinion  is  well  sum- 
marized in  the  headnote  in  these  words  :  "  It  is  not  competent  for  the 
legislature,  under  the  Constitution,  to  single  out  owners  and  operators 
of  mines  and  manufacturers  of  every  kind,  and  provide  that  they  shall 
bear  the  burdens  not  imposed  on  other  owners  of  property  or  employers 
of  labor,  and  prohibit  them  from  making  contracts  which  it  is  competent 
for  other  owners  of  property  or  employers  of  labor  to  make."  And  this 
ruling  was  followed  and  approved  in  State  v.  Fire  Creek  Coal  &  Coke 
Co.,  33  W.  Va.  188.  The  statute  brouglit  in  question  in  Millett  v. 
People,  117  111.  294,  required  all  coal  produced  in  the  State  to  be 
weighed  on  scales  to  be  furnished  by  the  mine-owners,  and  subjected 
the  mine-owner  to  a  fine  or  imprisonment  for  a  failure  to  comply  with 
its  provisions.  By  another  section  it  was  provided  "  that  all  contracts 
for  the  mining  of  coal,  in  which  the  weighing  of  the  coal  as  provided 
for  in  this  Act  shall  be  dispensed  with,  shall  be  null  and  void."  It  was 
held  that  the  mine-owners  could  not  be  compelled  to  make  their  con- 
tracts for  mining  coal  so  as  to  be  regulated  by  weight ;  and  that  they 
could  not  be  compelled  to  keep  and  use  scales  for  such  purposes,  save 
when  they  saw  fit  to  make  contracts  for  mining  on  the  basis  of  weigiit. 
The  law  was  considered  repugnant  to  the  constitutional  provision  that 
"  no  person  shall  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law  ;  "  that  to  single  out  coal-mine  owners,  and  prohibit 
them  from  making  contracts  which  it  w^as  competent  for  other  employ- 
ers of  labor  to  make,  was  not  due  process  of  law.  And  for  like  reasons 
the  same  court  held  an  Act  void  which  denied  to  persons  and  cori)0- 
rations  engaged  in  mining  and  manufacturing  the  right  to  keep,  or  be 
interested  in,  a  truck  store  for  furnishing  supplies,  etc.  Frm-er  v. 
People,  31  N.  E.  Rep.  395. 

Some  of  the  cases  just  cited  cannot  be  distinguished  from  this  one. 
In  others,  there  is  some  difference  in  the  facts,  and  in  the  statutes  con- 
sidered, and  in  some  of  them  the  constitutional  provisions  use  different 
woi-ds  from  the  clauses  of  our  Constitution  before  set  out ;  but  the 
cases  just  cited  are  all,  in  point  of  principle,  like  the  one  in  hand.  The 
differences,  such  as  they  are,  strengthen,  rather  than  weaken,  the  con- 
clusion w^iich  we  have  before  expressed,  for  it  must  be  evident  that 
they  all  teach  this  doctrine :  that  constitutional  declarations  concerning 
the  liberty  of  the  citizen,  though  using  different  words,  are  not  to  be 
reduced  to  an  empty  sound.  Liberty,  we  have  seen,  includes  the  right 
to  acquire  propertVjjvnd  that  iiTeans  and  includes  tlie  rioht  to  makcaiul 
enforce  contracts.  We  do  not  sav  that  such  rights  cannot  be  regulated 
bv  general  law,  but  we  do  say  that  the  legislature  cannot  single  out 


CHAP,  v.]  STATE   V.    LOOMIS.  935 

one  class  of  persons,  who  ai'e  competent  to  contract,  and  deprive  tliem 
of  rights  in  that  respect  which  are  accorded  to  other  persons.  The 
constitutional  declaration  tliat  "  no  person  shall  be  deprived  of  life, 
libert}',  or  property  without  due  process  of  law"  was  designed  to  pro- 
tect and  preserve  their  existing  rights  against  arbitrary*  legislation,  as 
well  as  against  arbitrary  executive  and  judicial  Acts.  The  sections  of 
our  statute  in  question  deprive  a  class  of  persons  of  the  right  to  make 
and  enforce  ordinary  contracts,  and  they  introduce  a  system  of  State 
paternalism  which  is  at  war  with  the  fundamental  piinciples  of  our 
government,  and,  as  we  have  before  said,  are  not  due  process  of  law. 
It  cannot  be  said  that  these  defendants,  in  operating  their  coal  mines, 
are  pursuing  a  public  business,  or  that  they  have  in  any  way,  shape,  or 
form  devoted  their  property  to  a  public  use;  and,  this  being  so,  tlie 
cases  of  Mann  v.  lUinois,  94  U.  S.  113,  and  Jiudd  v.  JVew  York, 
143  U.  S.  517,  are  not  in  conflict  with  what  we  have  said.  On  the  con- 
trary,  the  line  of  argument  inirsued  in  those  cases  goes  far  to  sliow  that 
a  statute  like  the  one  in  hand  cannot  stand.  The  many  adjudications 
upholding:  police  regulations  need  not  be  noticed,  for  it  cannot  be 
claimed  that  the  law  in  question  is  of  that  character.  The  case  of  Han- 
cock v.  Yaden,  121  Ind.  366,  goes  far  to  support  and  uphold  this  law, 
but  we  cannot  agree  to  the  doctrine  of  that  case.  Slow  as  we  are,  and 
should  be,  to  declare  legislative  enactment  void,  we  can  reach  no  other 
conclusion  than  that  before  expressed. 

The  judgment  is  reversed,  and  the  defendants  discharged.  AH  con- 
cur, except  Barclay,  J.,  who  dissents.  ^/     jA   . /, 

Barclay,  J.     The  reasons  of  mj^  learned  associate.  Chief  Justice  f^aAj^<^ 
Black,  for  holding  the  statute  unconstitutional,  seem  to  me  unsatisfac-        /  ^      -^ 
tor}',  and  the  importance  of  the  case  warrants  a  statement  of  the  grounds     ^"j^^*-^-"-^' 
of  dissent.  ,0^  u^^^ 

1.  There  is  no  issue  touching  the  impairment  of  obligation  of  any      ^       ^ 
contract  concluded  before  the  passage  of  the  Act.     The  transactions  in     (j^ 
view  occurred  long  afterwards.     The  only  controversy  now  is  whether    ,/C-*^'^'^-^'^ 
or  not  the  statute  violates  the  guarantees  of  "  liberty  "  and  '^  property," 
and  of  "  due  process  of  law,''  on  which  the  judgment  of  the  mnjority 
of  the  court  is  placed.     In  the  principal  opinion  it  is  conceded  that  the 
legislature  has  power  to  restrict  freedom  of  contract  in  some  directions, 
and  in  respect  to  certain  parties;  for  example,  "infants  and  insane 
persons."     That  concession  may  be  taken  as  a  starting-point  for  the 
present  investigation  ;  for  when  it  is  granted  that  liberty  to  make  con- 
tracts  is  not  absolute  and  unlimited,  our  difference  is  narrowed  into  the 
i iKj^u i ry,   what  is  the  i)eculiarity  of  the  subject-matter  of  the  stat 1 1  te 
under  review   which  exempts  it   from  regulation  by  tlie  law-making 
power  ? 

One  reason  given  for  condemning  the  law  before  us  is  that  the  sub- 
jection of  corporations,  and  other  persons  operating  mines  and  manu- 
facturing establishments,  to  such  regulation,  is  a  "purely  arbitrary" 


936  STATE   V.   LOOMIS.  [CHAP.  V. 

classification  ;  therefore,  an  infringement  of  tlieir  constitutional  liberty*. 
Althoiigli  that  proposition  seems  a  vital  one  to  support  the  conclusion 
reached,  it  is  said  in  another  part  of  the  opinion  that  "  it  is  perfectly 
competent  to  legislate  concerning  married  women,  minors,  insane  per- 
sons, bankers,  common  carriers,  and  the  like."  In  this  connection  the 
Supreme  Court  has  held  i^in  a  case  which  furnishes  an  elaborate  list  of 
instances  of  such  legislation)  that  "'class  legislation  is  not  necessarily 
obnoxious  to  the  Constitution.  It  is  a  settled  construction  of  similar 
constitutional  provisions  that  a  legislative  Act  which  ai)|)lies  to  and 
embraces  all  persons  "  who  are  or  who  may  come  into  like  situations 
and  circumstances '  is  not  partial."  Humes  v.  Raiheaij  Co.  (1S84),  82 
Mo.  231,  cited  recently  and  followed  in  an  opinion  by  the  present  Chief 
Justice  in  Ferkins  v.  Railway  Co.  (1891),  103  Mo.  56.  To  the  same 
point,  see  Budd  v.  Neiv  York,  143  U.  S.  517. 

The  law-maker  necessarily  deals  w^ith  conditions  as  he  finds  them. 
If  he  observes,  and  wishes  to  abate,  some  fraudulent  practice  or  abuse 
of  power  prevailing  only  in  some  one  line  of  business,  the  fact  that,  in 
legislating  to  correct  it,  he  does  not  also  include  in  his  remedy  all  other 
phases  of  human  affairs,  can  furnish  no  reason  for  stigmatizing  his 
remedy  as  no  law  at  all.  If  an  Act  reaching  only  mining  and  manu- 
facturing concerns  is,  on  that  account,  not  "  due  process  ol  law,"'  what 
m u st  be  held  of  statutes  establishing  special  rules  of  liability,  or  busine s s 
re^ ulations,  applicable  to  railroads  only,  to  warehousemen,  pawubrokc r s, 
auctioneers,  millers,  and  the  many  other  classes  of  persons  whose 
affairs  form  topics  of  treatment  in  separate  laws  ?  Are  all  such  statutes 
void,  because  each  relates  to  persons  engaged  only  in  the  particular 
class  of  business  named  in  it?  Probably  they  would  not  be  so  held. 
Some  of  them  are  acted  on  and  enforced  almost  daily.  Yet  if  they 
are  valid,  what,  let  me  ask,  is  there  so  exceptional  about  the  t r u ck 
system  that  precludes  legislation  ap|:)licable  to  those  line^  Of  TOisiness 
in  which  it  prevails?  If  laws  regulating  the  contracts  of  !)ankers  (Re- 
vised Statutes  1889,  §  706),  common  carriers  (Id.  §  944),  mechanics 
(Id.  §  6705),  and  insurance  companies  (Id.  §  5856),  as  distinct  classes 
of  persons,  are  constitutional,  and  involve  no  invasion  of  their  rights 
to  '^  liberty  or  property,"  how  can  the  position  be  maintained  that  such 
legislation,  touching  contracts  of  miners  and  manufacturers,  invades 
these  rights?  The  opinion  certainly  furnishes  no  reason,  founded  on 
any  language  of  the  Constitution,  for  nullifying  the  latter,  while  approv- 
ing the  former,  statutes.  It  admits  that  "  the  legislature  may  regulate 
the  business  of  mining  and  manufacturing  so  as  to  secure  the  health 
and  safety  of  the  em|)loyees."  In  Durant  v.  Mining  Co.  (1889),  97 
Mo.  62,  the  same  learned  judge  gave  full  effect  to  a  statute  "  providing 
for  the  health  and  safety  of  persons  employed  in  coal  mines."  Session 
Acts,  1881,  p.  165. 

If  a  law  applicable  only  to  persons  engaged  in  mining  is  constitutional 
when  dealing  with  the  topic  of  their  health  and  safety,  it  is  obvious  that 
an  Act  designed  to  prevent  fraud  or  oppression  in  the  payment  of  wages 


CHAP,  v.]  STATE  V.   LOOMIS.  937 

b^'  miuiag  aud  manufacturing  enterprises  is  not  objectionable  on  the 
ground  of  the  selection  or  '"classification"  of  tliose  enterprises  as 
subjects  for  separate  legislation. 

Touching  this  particular  point,  the  Supreme  Court  of  the  United 
States  has  said  :  "  Leaislation  is  not  open  to  the  charge  of  depriving  one 
of  his  rights  witliout  due  prucess  of  law,  if  it  be  general  in  its  operation 
upon  the  subjects  to  which  it  relates."  De/it  y.Wetit  l-irc/i/iia  (18Sd), 
129  U.  S.  12-i.  The  same  court  has  held  ihat  statutes  creating  a  differ- 
ent rule  of  liability,  as  applied  to  one  class  of  persons,  from  that  gen- 
erally in  force,  do  not  infringe  the  right  to  "due  process  of  law." 
Bailway  Co.  v.  Humes  (1885),  115  U.  S.  512  ;  Railway  Co.  v.  Mackey 
(1888),  127  U.  S.  205.  And  the  Supreme  Court  of  this  State  has 
determined  that  "  a  statute  which  relates  to  persons  or  things  as  a 
class  is  a  general  law,  while  a  statute  which  relates  to  particular  per- 
son or  things  of  a  class  is  special."  State  ex  rel.  Lionhergtr  v.  I'oUe 
(1880),  71  Mo.  650.  If  the  Act  is  invalid,  it  cannot  be  because  it 
treats  of  mining  and  manufacturing  concerns  onl}'.  In  re  Obcrg  (1891), 
21  Or.  406;  Youngbloodx.  Trust  &  Sav.  Co.  (Ala.,  1892),  12  South. 
Rep.  579. 

2.  The  gist  of  the  opinion  is  to  be  found  in  the  ruling  that  the  con- 
stitutional ouarantee  of  "  due  process"  condemns  '^  arbitrary,  unequal, 
and  pai'tial  legislation  ;  "  that  the  statute  in  question  is  of  that  nature, 
and  is  therefore  annulled  as  unconstitutional  and  void.  With  due 
respect  for  the  judgment  of  my  colleagues,  that  view  appears  to  me 
erroneous.  The  Act,  in  part,  was  passed  in  1881.  It  was  amended  in 
1885,  and  re-enacted  by  the  revision  of  1889.  It  has  thus  received  the 
sanction  of  the  31st,  33d,  and  35th  General  Assemblies  of  Missouri  and 
of  Governors  Crittenden,  Marmaduke,  and  Francis,  successively.  Its 
plain  purpose  is  to  put  some  restraint  upon  that  sort  of  freedom  w'hich 
would  permit  the  employer  to  contract  for  labor,  payable  in  goods,  and 
then  place  his  own  prices  upon  the  goods  delivered  in  payment. 

The  general  objects  of  such  a  law,  as  well  as  the  principle  upon  which 
it  rests,  have  been  fully  stated  by  English  judges,  having  before  them 
a  British  law  of  similiir  character,  commonly  called  the  "  Truck  Act." 
1  &  2  Wm.  IV.  (1831^,  c.  37.  "In  passing  the  statute  referred  to, 
the  legislature  seems  to  have  considered  the  artificer  as  requiring  special 
protection  in  his  dealings  with  his  employers,  and  to  have  thought  it 
right,  therefore,  to  make  the  contracts  between  these  parties  one  of  the 
exceptions  to  the  general  rule  that  persons  should  be  allowed  to  make 
their  own  contracts,  in  their  own  way.  The  particular  evil  to  be  rem- 
edied (and  which,  notwithstanding  former  enactments,  still  prevailed) 
was  the  truck  system,  or  payment  by  masters  of  their  men's  wages 
wholl}-  or  in  part  with  goods,  —  a  system  manifestly  to  the  disadvan- 
tage of  the  workman,  wlio  was  practically  forced  to  take  the  goods  at 
his  master's  valuation.  In  order  to  obviate  this,  the  statute  reciting 
'  that  it  is  necessary  to  prohibit  the  payment,  in  certain  trades,  of 
wages  in  goods,  or  otherwise  than  in  the  current  coin  of  the  realm,'  by 


938  ST\TE   V.   LOOMIS.  [CHAP.  V. 

section  1  enacts  that  any  contract  by  which  the  whole  or  any  part  of  the 
wages  of  the  artificer  is  made  payable  in  any  other  manner  than  in  the 
current  coin  shall  be  null  and  void." — Keating,  J.,  in  Archer  v.  James 
(18G2),  2  Best  «&  S.  73. 

"  The  old  truck  enactments  are  very  numerous,  and  date  from  about 
the  year  14G4  (-i  Edw.  IV.).  Tliey  were  applied  first  to  one  branch  of 
manufacture,  and  then  in  succession  to  others,  as  experience  and  the 
progress  of  manufactures  dictated,  till  they  embraced  the  whole,  or 
nearly  the  whole,  of  the  manufactures  of  England.  They  established  the 
obligation,  and  produced,  or  at  least  fortified,  the  custom,  of  uniformly 
paying  the  w'hole  wages  of  artificers  in  the  current  coin  of  the  realm. 
They  were  finalh'  collected  and  consolidated  into  one  Act  by  the  statute 
now  under  consideration.  1  &  2  Wm.  IV.  c.  37.  The}-  were,  in  truth, 
part  of  a  system  of  legislation  regulating  the  relation  of  master  and 
workman,  this  part  of  it  being  in  favor  of  the  woi'kman,  who,  as  an 
individual,  was  deemed  weaker  than  his  master,  and  therefore  liable  to 
oppression.  .  .  .  The  Truck  Act,  when  passed,  was  a  practical  deduc- 
tion from  a  principle,  still  more  general,  pervading  more  or  less  all 
systems  of  law  founded  on  experience  ;  that  is  to  say,  that  where  two 
classes  of  |)ersons  are  dealing  together,  and  one  class  is,  generally 
speaking,  weaker  than  the  other,  and  liable  to  oppression,  cither  fro m 
natural  or  incidental  causes,  the  law  should,  as  far  as  possible,  redress 
the  inequality,  by  protecting  the  weak  against  the  strong.  On  this 
principle  rests  the  protection  thrown  around  infants  and  persons  of 
unsound  or  w^eak  mind,  the  protection  afforded  even  by  the  common 
law  to  the  victims  of  fraud,  and  by  the  Court  of  Chancery  at  this  day 
to  heirs,  expectants,  and  sellers  of  reversions  against  catching  and 
unconscionable  bargains,  though  entered  into  without  fraud,  and  by 
persons  of  full  age.  No  doubt  all  such  legislation  or  judicial  interpo- 
sition is  in  many  cases  ineffectual.  .  .  .  The  efhcacv  of  such  provisions 
must  not  be  estimated  bv  the  abuses  actually  remedied,  so  much  as  by 
the  abuses  prevented  by  the  knowledge  that  such  is  the  law.  So  viewed, 
the  Truck  Act  must  have  been  deemed  by  the  legislature  which  passed 
it  a  highly  remedial  statute,  and  is  therefore  now,  as  I  admit,  notwith- 
standing the  penal  clauses,  to  be  construed  liberally ,  so  as  to  advance 
the  supposed  remedy,  and  suppress  the  supposed  mischief."  — Bvles,  J., 
in  Archer  \.  James  (1862),  2  Best  &  S.  82.  Some  of  the  bargains 
referred  to  by  that  learned  judge,  as  well  as  a  great  variety  of  other 
agreements,  have  been  nullified  by  courts  in  this  country,  as  well  as  in 
England,  without  the  aid  of  statutes,  on  the  ground  that  they  were  con- 
trary to  pubhc  policy  (Greenhood  on  Public  Policy),  while  judges 
possessing  equity  jurisdiction  have  for  ages  exercised,  unquestioned, 
the  power  to  declare  agreements  void  between  attorney  and  client,  or 
between  other  persons  occupying  confidential  relationships,  where  ad- 
vantage was  taken  of  the  confidence  to  secure  a  bargain  which  -the 
court  considered  unduly  favorable  to  the  dominant  party  thereto.  In 
The  Juliana  (1822),  2  Dod.  504,  Lord  Stowell  refused  to  enforce  a 


CHAP,  v.]  STATE   V.   LOOMIS.  939 

covenant  between  a  mariner  and  his  emploj'er  to  the  effect  that  the 
former  should  not  be  entitled  to  any  part  of  his  wages  unless  the  ship 
should  return  to  the  last  port  of  discharge.  The  decision  is  placed  on 
the  ground  that,  in  view  of  the  relative  situation  of  the  parties  and  the 
nature  of  the  agreement,  its  effect  was  oppressive,  and  not  enforceable 
in  a  court  governed  by  the  "  rules  of  natural  justice."  So  that  at  com- 
mon  law,  in  equity  and  in  admiralty,  the  judiciary  exercise  the  right  to 
annul  certain  agreements  because  unfair  and  unconscionable  ;  the  prin- 
ciple of  such  rulings  being  that,  in  some  circumstances,  real  contrac- 
tual ^quality,  or  that  entire  freedom  of  action  essential  to  the  legal  idea 
of  a  contract,  is  wanting. 

It  seems  unreasonable  to  hold  that  the  courts  alone  may  determine 
what  the  public  policy  of  a  State  shall  be,  res|)ecting  the  validity  of 
agreements  between  parties  situated  so  that  one  may  have  an  undue 
advantage  over  the_other.  AVhy  has  not  the  legislature  power,  by  gen- 
eral law,  operating  on  future  dealings,  to  declare  a  similar  public 
policy  ?  The  judgments  of  the  courts  above  mentioned  have  never  been 
considered  an  arbitrary  infringement  of  the  liberty  of  contract ;  n o r 
should  a  statute,  aimed  at  a  system  affording  the  opportunitv  for  op- 
pression described  by  the  P^nglish  judges  quoted,  be  so  considered . 

Libert}',  "on  its  positive  side,  denotes  the  fulness  of  individual 
existence  ;  on  its  negative  side  it  denotes  the  necessary  restraint  on  all 
which  is  needed  to  promote  the  greatest  possible  amount  of  liberty  for 
each."  Amos,  Science  of  Law,  p.  90.  Rational  freedom  is  not  a 
license  to  oppress.  "As  soon  as  any  part  of  a  person's  conduct  affects 
prei'udicially  the  interests  of  others,  society  has  jurisdiction  over  it." 
Mill^  Liberty,  c.  4.  In  our  country  the  people  have  furnished  a  philo- 
sophic, as  well  as  noble,  manifestation  of  the  true  spirit  of  liberty,  in 
those  guarantees  of  individual  and  personal  rights  of  the  minorit}',  by 
which  the  majority  have  imposed  certain  constitutional  bounds  to  their 
own  public  action.  They  stand  as  barriers  to  encroachments  upon  the 
liberties  so  protected,  but  none  of  them  purports  to  confer  or  secure 
absolute  freedom  of  contract.  Neither  the  State  nor  Federal  Constitu- 
tion so  declai-es.  Laws  impairing  the  obligation  of  contracts  are  for- 
bidden ;  but  the  interdiction  stops  at  that.  In  Railway  Co.  v.  Gehhard 
(1883),  109  U.  S.  527,  tlie  United  States  Supreme  Court  held  that  but 
for  the  protection  of  the  fundamental  law  the  obligation  of  contracts 
was  subject  to  legislative  control,  and  was  not  secured  by  any  general 
principles  of  jurisprudence  outside  the  constitutional  guarantee.  The 
ri ght  to  regulate  contracts  so  as  to  mitigate  the  oppression  of  the  truck 
system,  without  imijairing  the  obligation  of  any  existing  agreement,  is 
a  part  of  the  police  power,  ' '  which  is  but  another  name  for  that  au tlior- 
ity  which  resides  in  every  sovereignty  to  pass  all  laws  for  the  internal 
regulation  and  governmen t  of  the  State,  necessary  for  the  public  wel- 
fai^?'  Peojyle  v.  Budd~'{\^9>^),  117  N.  Y.  14;  the  License  Cases 
(1847),  5  How.  583. 

By  the  Constitution  of  Missouri  it  is  declared  that  "the  exercise  of 


940  STATE  V.   LOOMIS.  [ciIAP.  V. 

the  police  power  of  the  State  shall  never  be  abridged,  or  so  construed 
as  to  permit  corporations  to  conduct  their  business  in  such  manner  as 
to  infringe  the  equal  rights  of  individuals,  or  the  general  well-being  of 
the  State."     Article  12,  §  5,  Const.  1875. 

The  police  power  in  recent  years  has  been  applied  in  many  notable 
instances,  where  it  w'as  contended  that  the  liberty  of  making  contracts 
was  not  subject  to  limitation  by  the  legislative  power ;  but  the  courts 
of  last  resort  have  ruled  against  that  contention  in  the  Granger  Cases 
{3Junu  v.  Illinois  [187G],  94  U.  S.  113)  ;  in  the  Bread  Cases  {Mayor 
V.  Yuille  [1841J,  3  Ala.  137;  People  v.  Wagner  [1891],  86  Mich. 
594)  ;  and  in  the  Elevator  Cases  {People  v.  JBucld  [1889],  117  N.  Y. 
14  ;  Budd  v.  New  York  [1892],  143  U.  S.  517  ;  State  y.  Brass  [1892], 
2  N.  D.  482.  In  Water  Works  v.  Schottler  (1884),  110  U.  S.  347,  4 
Sup.  Ct.  Rep.  48,  it  was  said  that  government  had  power  to  regulate 
the  prices  at  which  water  should  be  sold  b}'  one  enjoying  a  virtual 
monopol}'  of  the  sale. 

These  decisions  show  that  the  right  of  self-preservation,  which  exists 
in  the  Commonwealth  no  less  than  in  the  individual,  ma}',  in  some  cir- 
cumstances, justify  limitations  upon  freedom  of  contract ;  and  that  when, 
for  any  reason  (for  instance,  the  existence  of  a  monopoly),  real  libertj'' 
of  action  is  wanting  on  the  side  of  one  of  the  parties,  in  dealings  form- 
ing part  of  the  activities  of  civilized  society',  a  reasonable  check  may 
justl}'  be  placed  b}'  law  upon  the  power  of  the  other  to  oppress  his  fel- 
low-citizen. Such  checks  upon  liberty  of  contract  have  been  sustained 
b}'  the  highest  courts.  Others  involving  the  application  of  the  same 
police  power  (though  in  less  exigent  circumstances)  have  been  long  in 
force  in  Missouri  in  man}'  statutes,  among  which  are  especiall}'  note- 
worthy the  laws  fixing  a  maximum  rate  of  interest  for  the  use  of  money 
(Revised  Statutes  1889,  §  5972),  giving  mechanics  a  lien  in  certain 
circumstances  {Henry  &  Coatsworth  Co.  v.  Evans  [1889],  97  Mo.  47), 
governing  the  liabilit}'  of  common  carriers  (Revised  Statutes  1889,  §  944), 
forbidding  contracts  to  limit  the  time  for  bringing  an}'  action  (Id. 
§  2394),  putting  into  insurance  contracts  statutory  terras,  and  nullify- 
ing "any  stipulation  in  the  policy  to  the  contrary"  (Id.  §  5856, 
enforced  by  the  United  States  Supreme  Court  in  Society  v.  Clements 
[1890],  140  U.  S.  226),  and  the  laws  establishing  standards  of  weights 
and  measures  (Revised  Statutes  1889,  c.  170).  The  enactment  before 
us  comes  ver}'  near  to  the  class  last  named.  Examining  its  terms  (sec- 
tion 7058)  closely,  it  will  be  observed  that  it  merely  impresses  upon 
contracts  for  the  payment  of  wages  with  goods,  etc.,  certain  statutor}' 
conditions,  intended  to  give  the  employee  an  option  to  demand  payment 
in  cash  or  goods,  as  his  interest  ma}'  appear  to  require.  As  the  em- 
ployer  fixes  the  price  of  the  goods,  he  is  not  prejudiced  by  such  a  regu- 
lation. Its  effect  is  to  establish  a  just  standard  of  value  for  every 
dollar  due  for  wages.  It  does  not  differ  in  principle  from  governmental 
regulations  in  the  form  of  laws  by  which  a  person  who  has  contracted 
to  receive  a  yard  of  cloth  or  a  bushel  of  corn  is  protected  against  the 


CHAP,  v.]  STATE   V.    LOOMIS.  941 

necessity  of  acceptino^  such  a  sliort  yard  or  light  bushel  as  the  seller 
may  choose  to  impose  upon  him.  Statutes  designed  to  prevent  that 
sort  of  ovcrreacliiiig  have  been  universally  regarded  as  proper  exertions 
of  the  police  power.  Charleston  v.  Hogers  (1823),  2  McCord,  495  ; 
StoJces  V.  City  of  N'ew  York  (1835),  14  Wend.  87  ;  Green  v.  Moffett 
(1856),  22  Mo.  529  ;  Yates  v.  Milwaukee  (1860),  12  Wis.  673;  ^faton 
V.  Keyan  (1874),  114  Mass.  433. 

In  view  of  the  onerous  bearing  of  the  truck  system  upon  some  of 
those  whom  it  affects,  in  compelling  them  to  accept  pa3'ment  for  labor 
in  articles  whose  value  is  determined  by  the  party  adversely  interested 
in  the  bargain,  this  statute  (which  seeks  to  relieve  against  that  hard- 
ship) should  be  held  (no  less  than  those  already  mentioned)  "due  pro- 
cess of  law."  Adam  Smith,  the  great  advocate  of  freedom  of  commerce, 
declared  such  legislation  "  perfectlj-  just  and  equitable."  Wealth  of 
Nations,  bk.  1,  c.  10,  approvingly  quoted  by  Bramwell,  J.,  in  Archer 
V.  James  (1862),  2  Best  &  S.  89. 

Whether  or  not  that  view  is  sound  it  is  not  our  province  to  deter- 
mine, for  all  question  of  the  polic}',  wisdom,  or  expedienc}-  of  the  law 
belongs  to  other  departments,  not  to  the  judiciary.  The  people,  in  the 
exercise  of  the  prerogative  of  self-government,  have  thought  proper  to 
establish  a  rule  of  conduct  on  the  subject  which  appeared  to  them  con- 
ducive towards  maintaining  the  equilibrium  of  right  and  duty  between 
citizens  whose  common  welfare  was  important  to  the  State.  No  ex- 
press command  of  the  Constitution  forbade  such  action,  and  in  my 
judgment  it  should  be  sustained. 

3.  In  his  opinion  the  learned  Chief  Justice  adopts  a  quotation  to  the 
effect  that  an  Act  of  the  Legislature  may  "  transcend  the  due  bounds 
of  legislative  power,  even  though  no  express  constitutional  provision 
could  be  pointed  out  with  which  it  would  come  in  conflict."  That  view 
of  the  extent  of  the  revisory  power  of  the  Supreme  Court  over  Acts  of 
the  General  Assembly'  has  not  previousl}'  prevailed  in  Missouri.  It  is 
in  conflict  with  several  precedents.  In  Ootmty  Court  v.  Griswold 
(1874),  58  Mo.  192,  it  was  declared  :  "  That  the  law  is  unjust,  or  im- 
politic, or  oppressive  will  not  authorize  a  court  to  declare  it  illegal, 
unless  it  violates  some  specific  provision  of  the  Constitution.  ...  A 
law  may  be  unjust  in  its  operation,  or  even  in  the  principles  upon  which 
it  was  founded,  but  that  would  not  justify  a  court  in  expanding  the  pro- 
hibitions of  the  Constitution  beyond  their  natural  and  original  meaning, 
in  order  to  remedy  an  evil  in  any  particular  case.  These  principles 
have  now  become  axiomatic."  To  the  same  purport  is  Hamilt07i  v. 
County  Court  (1851),  15  Mo.  3.  Each  of  these  decisions  was  given 
under  a  constitution  containing  language  the  same  as  that  now  in  force 
concerning  "  due  process."  Afterwards,  that  language  was  repeated 
in  the  present  Constitution  ;  hence  that  construction  of  the  language, 
according  to  a  recognized  rule  of  interpretation,  should  be  taken  to 
have  been  adopted  with  it  when  the  new  Constitution  went  into  force, 
in  1875.     Gas  Co.  v.  Ilighy  (1890),  134  111.  557;  People  v.  O'Brien 


942  STATE   V.   LOOMIS.  [i.lIAP.  V. 

(1892),  9G  Cal.  171.  The  latter  instrument,  as  though  to  give  emphasis 
to  that  construction,  provides  that  tlie  legislative  power  is  vested  in  the 
General  Assembly,  "subject  to  the  limitations  herein  contained." 
Constitution  1875,  Article  4,  §  1,  See,  also,  the  later  case  o^  Phillips 
V.  Eaihcay  Co.  (1885),  8G  Mo.  540.  The  spirit  and  intent  of  terms 
used  in  the  Constitution  are,  no  doubt,  as  much  a  part  of  it  as  its  letter, 
and  should  be  considered  in  its  interpretation.  But  that  is  a  rule  essen- 
tially different  from  the  proposition  that  a  statute  may  be  pronounced 
void  because  it  appears  to  some  court  to  be  in  conflict  with  the  sup- 
posed general  s[)irit  or  principles  of  free  government,  not  expressed  in 
any  particular  provision  of  the  Constitution.  To  that  proposition,  or 
any  approach  towards  declaring  it,  my  dissent  is  earnestl}'  entered. 

The  authority  of  the  court  is  drawn  from  the  organic  law,  which 
asserts  the  independence  of  the  three  departments  of  government 
(Const.  1875,  art.  3),  and  the  power  of  each  is  marked  by  the  terms  of 
that  instrument. 

It  has  heretofore  been  considered  settled  that  all  action  of  the  legis- 
lative department  comes  within  range  of  the  presumption  that  public 
officers  have  rightly  acted,  until  the  contrary  is  made  clearly  to  appear  ; 
consequenth',  that  "  a  party  who  wishes  us  to  pronounce  a  law  uncon- 
stitutional takes  upon  himself  the  burden  of  proving  beyond  doubt  that 
it  is  so."  State  v.  Addington  (1882),  77  Mo.  110  ;  State  v.  Laughlin 
(1881),  75  Mo.  147.  But  now  a  majority  of  the  court  sanctions  the 
idea  that  some  legislation  is  not  to  be  considered  2^%  prima  facie  consti- 
tutional, but  calls  for  a  showing  of  "  specific  authorit}- "  to  sustain  it. 
Such  a  doctrine  (reversing  the  presumption  of  the  validit\-  of  statutes), 
coupled  with  the  other  proposition  already  discussed  in  this  paragraph, 
subjecting  ever}-  Act  of  the  General  Assembly  to  the  hazard  of  being 
declared  void,  "  though  no  express  constitutional  provision  could  be 
pointed  out  with  which  it  would  come  in  conflict,"'  furnishes  a  very 
interesting  formula  to  determine  the  constitutionalitv  of  legislation,  but 
one  quite  diff'erent  from  that  defined  in  former  precedents  in  this  State. 
It  amounts,  in  substance,  to  a  declaration  that  statutes  which  seem  to 
the  court  unjust  or  unreasonable  are  not  "  due  process  of  law,"  though 
not  otherwise  distinctU'  forbidden  b}-  the  Constitution. 

To  catch  the  full  force  of  this  ruling,  it  will  be  well  to  recall  that  the 
guarantee  of  "  due  process"  is  now  a  part  of  the  Fourteenth  Amend- 
ment to  the  Federal  Constitution,  as  well  as  of  our  own  organic  law ; 
so  that  the  test  of  the  validity  of  Missouri  legislation  is  to  be  whether 
or  not  it  conforms  to  the  standard  of  reasonableness  indicated  by  the 
Chief  Justice,  as  applied  b}'  the  Federal  courts,  as  well  as  by  our  own. 
It  would  greath'  prolong  this  opinion  to  point  out  the  far-reaching  con- 
sequences of  adopting  such  a  standard,  and  its  wide  divergence  from 
the  principles  of  republican  government  through  co-ordinate  depart- 
ments, as  established  by  our  written  constitutions.  It  is  enough  now 
to  assert  a  dissent  to  those  views  of  the  organic  law,  as  well  as  to  the 
judgment  in  this  case  to  which  they  have  led. 


CHAP,  v.]  STATE   V.    LOO.MIS.  943 

4.  Some  decisions  elsewhere  have  been  cited  to  sustain  the  conclu- 
sion of  my  colleagues.  Tlie  PennsNlvania  case  should  be  read  along 
with  the  later  one,  in  which  it  was  held  that  the  legislature  might, 
under  the  police  power,  interfere  with  freedom  of  contract  to  the  ex- 
tent of  forbidding  totall}'  the  sale  of  an  article  of  food,  even  though 
pure  and  wholesome.  Poicell  v.  Com.  (1886),  11-4  Pa.  St.  2Gii. 
Judge  Gordon,  wlio  wrote  the  former  decision,  dissented  from  the 
latter;  but  it  was  alHrmed  (1888)  by  the  United  States  Supreme  Court. 
127  U.  S.  G78.  In  a  yet  later  unanimous  opinion  in  that  State,  a  stat- 
ute was  held  valid,  prohibiting  citizens  from  assigning  certain  claims 
against  others,  for  the  purpose  of  suit  in  another  State.  Stoeeny  v. 
Hunter  (1891),  145  Pa.  St.  363.  The  West  Virginia  case  cited  by  the 
Chief  Justice  has  been  much  limited,  if  not  overruled,  by  State  v.  Coal 
Co.  (1892),  36  W,  Va.  802  ;  and  the  Massachusetts  decision  was  by  a 
divided  court.  The  cases  in  Illinois  are  placed  chiefly  on  the  ground 
that  it  is  unconstitutional  to  establish  rules  to  govern  mining  and  manu- 
facturing concerns  different  from  those  which  regulate  other  legitimate 
enterprises.  To  that  contention  the  remarks  in  the  first  paragraph 
above  ai'e  intended  to  appl}-.  Moreover,  the  legislation  considered  in 
that  State  differs  in  important  particulars  from  that  here  in  view. 

On  the  other  side,  Hancock  v.  Yaden  (1890),  121  Ind.  366,  supports 
the  position  taken  in  this  opinion.  In  State  v.  3Ia)nifacturing  Co. 
(E.  I.,  1892),  17  L.  R.  A.  856  [25  Atl.  Rep.  246],  a  law  requiring  the 
payment  of  wages  weekly  was  held  valid  ;  and  the  principles  declared 
in  the  decisions  sustaining  statutes  prohibiting  the  manufacture  and  sale 
of  oleomargarine  are  wholly  inconsistent  with  the  judgment  of  the  ma- 
jority of  the  court  in  the  case  at  bar.  State  v.  Addincjton  (1882),  12 
Mo.  App.  214,  affirmed  (1882)  77  Mo.  110;  Powell  v.  Pennsylvania 
(1888),  127  U.  S.  678;  Butler  v.  Chambers  (1886),  36  Minn.  69. 

5,  It  has  been  suggested  in  the  main  opinion,  as  well  as  at  the  bar, 
that  the  statute  in  question  is  subject  to  criticism  as  being  an  exhibi- 
tion of  paternalism  in  government.  To  this  it  may  properly  be  an- 
swered that  that  consideration  affects  only  the  policy-  of  the  statute, 
and  not  the  constitutional  power  of  the  legislature  to  enact  it.  Stu- 
dents of  juridical  history  are  aware  that  governmental  interferences  with 
libert}'  of  contract  between  man  and  man  are  less  frequent  now  than  in 
earlier  epochs  of  the  English  law.  Spencer,  "Justice,"  ch.  15,  sec.  70; 
Maine,  Ancient  Law,  3  Am.  ed.,  ch.  9,  p.  295.  But  the  power  to  inter- 
fere when  necessary  to  prevent  oppression  is  an  important  prerogative 
of  sovereignty,  and  resides  in  the  people  of  this  State,  subject  only  to 
the  limitations  expressed  in  their  constitutions.  The  cure  for  paternal 
legislation  is  not  to  be  found  in  an  assumption  b}-  the  courts  of  any 
part  of  the  power  of  self  government  l)elonging  to  the  peoi)le  or  their 
representatives.  To  borrow  the  words  of  INIr.  Justice  Harlan  in  the 
United  States  Supreme  Court,  referring  to  the  oleomargarine  law:  "If 
all  that  can  be  said  of  this  legislation  is  that  it  is  unwise,  or  unneces- 
sarily- oppressive  to  those  manufacturing  or  selling  wholesome  oleomar- 


944  STATE   V.   LOOMIS.  [CIIAR  V. 

garine  as  an  article  of  food,  their  appeal  must  be  to  the  legislature,  or 
to  tlie  ballot-box,  not  to  the  judiciar}'.  Tlie  latter  cannot  interfere 
without  usurping  powers  committed  to  another  department  of  govern- 
ment."    Foioell  V.  Fennsijlvania  (1888),  127  U.  S.  G86. 

When  the  present  case  was  in  the  second  division  of  the  court,  an 
able  opinion  was  rendered  by  Judge  Thomas  {AStcUe  v.  Loomls  [1802], 
20  S.  W.  Rep.  332),  affirming  the  judgment  of  Judge  Ellison  on  the 
circuit.     The  result  then  announced  appears  to  me  correct.^ 

1  Compare  Ileidett  v.  AUeri,  [1892]  2  Q.  B.  662,  in  wliich  the  English  Truck  Acts 
were  applied.  By  a  recent  Act,  bt.  50  &  51  Vict.  c.  46,  s.  6,  it  was  provided  that  "  No 
employer  shall  directly  or  indirectly,  by  himself  or  his  agent,  impose  as  a  condition, 
express  or  implied,  in  or  for  the  employment  of  any  workman  any  terms  as  to  the 
place  at  whicli,  or  tlie  manner  in  which,  or  the  person  with  whom,  any  wages  or 
portion  of  wages  paid  to  the  workman  are  or  is  to  be  expended,  and  no  employer 
shall,  by  himself,  or  his  agent,  dismiss  any  workman  from  his  employment  for  or  on 
account  of  the  place  at  which,  or  the  manner  in  which,  or  the  person  with  whom,  any 
wages  or  portion  of  wages  paid  by  the  employer  to  such  workman  are  or  is  expended 
or  fail  to  be  expended."  —  Ed. 


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